On June 23, 2023 the FCC released a Third Report and Order (“Order”) and Fourth Further Notice of Proposed Rulemaking (“FNPRM”) modifying various Next Generation Broadcast Television (“Next Gen TV” or “ATSC 3.0”) rules to continue the voluntary transition to ATSC 3.0, as explained below, and seeking comment on the current marketplace for ATSC 3.0 standard essential patents (“SEPs”) and the ability of third parties to develop products that rely on them.
You may recall that in 2017, the FCC authorized television broadcasters to use the Next Gen TV transmission standard on a voluntary, market-driven basis. Broadcasters who elected to make the voluntary transition to ATSC 3.0 were required to continue to air ATSC 1.0 service for their primary stream through local simulcasting. The simulcast 1.0 stream is required to be substantially similar to the 3.0 stream. Broadcasters were further encouraged, but not required, to simulcast their 3.0 multicast streams in a 1.0 format. In order to comply with the simulcasting requirement, broadcasters were required to partner with another local broadcaster in their market to either air their ATSC 3.0 channel (while using their own facilities to air the 1.0 channel) or to air the 1.0 channel (while using their own facilities to air the 3.0 channel). The application process to deploy ATSC 3.0 included coverage requirements to the ATSC 1.0 simulcast signal. The FCC’s rules, however, did not address the guest station’s licensing of a host station’s spectrum to air multicast streams.
The Order makes three notable changes to the FCC’s ATSC 3.0 Rules:
- Multicast Licensing: FCC modifies its ATSC 3.0 rules to allow a Next Gen TV broadcaster to seek modification of its license to include its simulcast multicast streams, whether they are hosted together with its primary stream or on a different simulcast host. Essentially, a Next Gen TV station may seek modification of its license to include one or more of its multicast streams, hosted by one or more partner station, whenever the Next Gen TV station is airing that multicast stream in “substantially similar” fashion in both 1.0 and 3.0 formats and otherwise complying with the following requirements:
- Capacity: The Next Gen TV station that has converted its own facility to 3.0 does not license more capacity on partner host stations, in the aggregate, than the station could use if it were still operating its own facility in 1.0. Stations will be required to provide information about each of its licensed streams in the application to demonstrate compliance with this requirement.
- Minimizing 1.0 Primary Stream Service Loss: in certain circumstances, a Next Gen TV station may simulcast its primary stream programming on both its primary stream host and a multicast stream carried by a different partner station in order to minimize the impact of 1.0 primary service loss that would result if an originating station were only to air its primary stream on a single host
- Ownership; the FCC clarifies that hosting multicast streams on a temporary host station’s facility will not result in attribution under the broadcast ownership rules or any other requirements related to television station attribution
- Coverage: 1.0 multicast streams aired on a host channel must continue to cover the guest station’s entire community of license and the host station must be assigned to the same DMA as the originating station. For 3.0 multicast streams aired on a host channel, only the DMA requirement applies.
- Licensing: upon grant of an application, each of an originating station’s multicast streams aired as a guest stream on a host will be licensed as an additional temporary channel of the originating broadcaster. Commonly owned stations are not required to enter into written agreements for hosting.
- Substantially Similar Rule: the FCC extends the sunset date for the substantially similar rule to July 17, 2027. The substantially similar rule requires that 1.0 be the same as 3.0 programming, except for programming features that are based on the enhanced capabilities of ATSC 3.0 and promotions for upcoming programs. The rule was initially set to sunset in July 2023, however, due to the current state of marketplace transition to 3.0, the FCC finds it necessary to continue the substantially similar rule through July 17, 2027.
- ATSC A/322 Standard: the FCC extends the requirement to comply with the A/322 standard through July 17, 2027. The FCC concludes the requirement is necessary to protect consumers through the transition.
In the FNPRM the FCC seeks comment on the current marketplace for ATSC 3.0 SEPs and the ability of third parties to develop products that rely on them, including whether there are problems in the marketplace that could be ameliorated by standards or other requirements, and the legal authority of the FCC to take any actions on these issues.
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