The FCC has just released a Third Further Notice of Proposed Rulemaking (FNPRM) seeking comments on the state of the Next Generation Television (“Next Gen TV” or “ATSC 3.0”) transition, and on the scheduled sunset of two rules adopted in 2017.  Generally, the FNPRM seeks comments on the progress of broadcasters’ voluntary deployment of ATSC 3.0 service and the current state of the ATSC 3.0 marketplace, including whether holders of essential patents for the ATSC 3.0 standards are licensing such patents on reasonable and non-discriminatory terms.  In addition, comments are sought on the scheduled 2023 sunset of the rule requiring that a Next Gen TV station’s ATSC 1.0 simulcast primary video programming stream be “substantially similar” to its 3.0 primary programming stream.  Lastly, the FCC seeks comments on the scheduled 2023 sunset of the requirement that a Next Gen TV station comply with the “ATSC A/322” technical standard.

        I. Background

Next Gen TV is the most recent broadcast TV transmission standard, which enables broadcasters to deliver new video and non-video services and enhanced content features to consumers.  Also known as “ATSC 3.0,” this standard merges the capabilities of over-the-air broadcasting with the broadband information delivery methods of the Internet, using the same 6 MHz channels presently allocated for traditional digital television (DTV) service.  The greater spectral capacity of the ATSC 3.0 standard and its Internet-Protocol  delivery component allows broadcasters to provide consumers with a higher quality television viewing experience, and has the potential to enable broadcasters to reach viewers on mobile screens as well as home TVs.  In addition, ATSC 3.0 allows broadcasters to offer enhanced capabilities, such as geo-targeting of emergency alerts and “hyper-localized” specific programming (including commercial advertisements), as well as to offer one-way datacasting services.

In November 2017, the FCC authorized television broadcasters to use the Next Gen TV transmission standard on a voluntary, market-driven basis.  However, the Commission required that broadcasters voluntarily deploying ATSC 3.0 service must continue to air at least their primary stream using the current-generation DTV transmission standard (“ATSC 1.0”) to their viewers through “local simulcasting” arrangements with other stations in their local market. This requirement was intended to minimize viewer disruption, since the Next Gen TV standard is not backward-compatible with pre-existing TV sets or receivers with ATSC 1.0 (or analog) tuners. At the same time, the Commission also adopted a requirement that the programming aired on a Next Gen TV station’s ATSC 1.0 simulcast channel be “substantially similar” to that of the primary video programming stream on the ATSC 3.0 channel:  the programming must be the same, except for programming features that are based on the enhanced capabilities of ATSC 3.0 and promotions for upcoming programs.  This “Substantially Similar Rule” was intended to ensure that viewers do not lose access to their broadcast programming.  In order not to impede technical or programming innovations, though, the Substantially Similar Rule was set to sunset on July 17, 2023, unless extended by the Commission.

In regards to the Next Gen TV broadcast transmission standard, in 2017 the Commission required compliance with only two parts of the ATSC 3.0 suite of standards:  (1) ATSC A/321:2016 “System Discovery & Signaling” (A/321), which is the standard used to communicate the RF signal type that the ATSC 3.0 signal will use; and (2) A/322:2016 “Physical Layer Protocol” (A/322), which is the standard that defines the waveforms that ATSC 3.0 signals may take.  While this was to promote uniformity and incent the manufacture of equipment, the Commission decided that it was not appropriate at the time to require broadcasters to adhere to A/322 indefinitely, since the “ATSC 3.0 standard could evolve, and stagnant Commission rules could prevent broadcasters from taking advantage of that evolution.” Accordingly, the Commission ruled that the requirement to comply with the A/322 standard would expire on March 6, 2023, unless the Commission acted to extend it.

Lastly, in regards to licensing of patented ATSC 3.0 technology, the FCC originally recognized that the Advanced Television Systems Committee (ATSC), which developed the ATSC 3.0 standards, required patent holders to license the technology on reasonable and non-discriminatory terms.   But the FCC never developed specific rules to enforce this.

        II. Third FNRPM

The recently released Third FNPRM seeks comments on a number of broad issues:

A. Review of the ATSC 3.0 Marketplace 

It has now been over four years since the FCC authorized the provision of ATSC 3.0 service.   How has the marketplace developed?  The FNPRM seeks comments on five aspects of the deployment:  “(1) voluntary deployment of ATSC 3.0 service by broadcasters and the continued availability of ATSC 1.0 programming; (2) availability of ATSC 3.0 consumer TV sets and equipment; (3) consumer viewership of ATSC 3.0 signals; (4) MVPD carriage of ATSC 3.0 signals; and (5) status of ATSC 3.0 patent licensing.”

It will be interesting to see how the major entities promoting Next Gen TV describe the market place, as opposed to parties that feel that the marketplace has not had a chance to significantly develop, or that development has been stunted either by technology, economics or by business practices.

B. The Substantially Similar Rule

The FNPRM seeks comments on whether to retain the Substantially Similar Rule, or permit it to sunset in 2023.  As the FCC noted when adopting the requirement, “the purpose of the rule, in conjunction with the underlying requirement to simulcast in 1.0, is to protect 1.0 viewers from losing access to a Next Gen TV station’s programming when that station transitions its facility to 3.0.  While the underlying requirement that a Next Gen TV broadcaster must air a 1.0 signal (when deploying 3.0) ensures 1.0 viewers continue to receive some free OTA TV service during the transition, the substantially similar rule ensures that 1.0 viewers actually receive the same primary video programming as that aired on the 3.0 channel.”

We expect to see arguments on both sides of this issue, with some commenters urging the FCC to eliminate the rule to promote innovation and a free marketplace, and others urging extension of the rule to protect viewers.

C. The Requirement to Comply with the ATSC A/322 Standard.

The FNPRM seeks comments on whether to retain the requirement that Next Gen TV broadcasters’ primary video programming stream comply with the ATSC A/322 standard and, if so, for how long.   Additionally, if the FCC retains the requirement, should there be a new sunset date?  Here, the Commission must seek to balance providing certainty to consumers, television receiver manufacturers, and MVPDs, against the needs of technical innovation.  The FNPRM also notes that that the ATSC has updated the A/322 standard, most recently in 2021, with only ministerial but no substantive changes.  Perhaps the best approach would be for the FCC to follow the ATSC.


                The comments to this FNRPM may have a significant impact on the development of the TV industry.   If you want more information on this proceeding, please contact your Fletcher Heald attorney.