Broadcasters Push FCC on ATSC 3.0 Transition

The FCC’s October further NPRM proposed to end simulcast and substantially similar requirements for ATSC 3.0 broadcasts, but it sought comment only on NAB's proposals for implementing a tuner mandate and setting a specific date for the sunset of 1.0. That’s not enough, said NAB and the nation’s largest broadcast groups.

“Without a firm deadline, Nexstar is concerned that the current ‘cycle of hesitation’ -- where manufacturers delay due to market uncertainty, and broadcasters delay due to concerns over audience retention will never be broken,” the company said. Sinclair similarly argued that “the most important steps the Commission can take to accelerate the transition” is “to establish a firm date for the sunset of the ATSC 1.0 standard and to update the FCC’s existing rules regarding receiver standards.” Pearl TV agreed, saying that “without a modernized receiver standard including ATSC 3.0 and a firm ATSC 1.0 sunset date, manufacturers will not scale production, retailers will not stock devices, and consumers will continue to face high prices and limited availability.”

A transition to ATSC 3.0 should be based on market penetration and protecting consumers, said a joint filing from Public Knowledge, Consumer Reports, the Electronic Frontier Foundation and others. Moving forward with the transition when the FCC doesn’t yet have basic data on consumer awareness and ATSC 3.0 adoption “would be premature,” the groups said. The agency should “establish clear, measurable, and enforceable benchmarks” for market penetration, 3.0 receiver affordability, coverage and other metrics “that must be satisfied before any station may terminate ATSC 1.0 service.”

The FNPRM’s proposal to allow stations to transition when they choose would actually have the same effect as a nationwide “flash-cut,” said Weigel Broadcasting. “Once some broadcasters cease transmitting in ATSC 1.0, the economics of 1.0 service will deteriorate,” forcing other broadcasters to transition as well. When key stations leave, the variety of content on 1.0 will also diminish, driving consumers and advertisers to abandon 1.0 broadcasters, Weigel said. “Once the first set of stations leaves ATSC 1.0 (particularly large broadcast station groups), the others will have to follow.”

NAB’s proposed tuner mandate would raise the costs of all TVs, even though only a subset of purchasers watch broadcast TV, said CTA. “It would be inequitable and harmful to consumers to mandate that all TVs add an ATSC 3.0 tuner because of the increased manufacturing cost to implement for all a feature that only some want.” A forced transition could also create a national e-waste problem, said the joint filing from Public Knowledge and other groups. “When a station terminates ATSC 1.0 service, every ATSC 1.0-only device in its coverage area becomes partially obsolete,” they said. “Multiply this across hundreds of stations making independent transition decisions and the result is a rolling e-waste crisis that would burden consumers, municipalities, and recycling systems.”

The Conservative Political Action Committee and several other conservative-leaning groups said an FCC-mandated transition would run counter to the agency’s vocal focus on deregulation. Its original decision to authorize a voluntary ATSC 3.0 transition “reflected appropriate regulatory humility,” CPAC said. “With broadcasters operating under the strain of onerous regulation dating from the Second World War, new mandates on them or device manufacturers are not the solution,” said a joint filing from Americans for Tax Reform, Digital Liberty, the Competitive Enterprise Institute and others.

Encryption Arguments

Broadcaster encryption of commenters' ATSC 3.0 signals was a major focus in the docket. The ATSC 3.0 Security Authority (A3SA) and numerous broadcasters said digital rights management (DRM) is necessary to protect content. “Without robust content protection and signal security, broadcasters and their viewers across the country who rely on [over-the-air] television risk losing marquee programming to subscription services and digital platforms,” said A3SA.

The joint filing from Public Knowledge said DRM deters market entrants and could allow A3SA to serve “as a private gatekeeper to the public airwaves.” A3SA’s role in certifying devices could lead to consumers buying those that feature the NextGen logo, indicating that they're 3.0-compatible even though they can’t display all available 3.0 content, the groups said. “The conditioning of access on A3SA device certification creates a gatekeeping function incompatible with the open-access principles underlying the First Amendment’s guarantee of a free press and free speech.”

The Motion Picture Association argued that DRM encryption is “used by every other major distribution platform across the modern media ecosystem -- including cable television and streaming services -- to protect content.”

Broadcasters “are not seeking anything new or different than any of our competitors,” NAB similarly said. “A stable, predictable environment for content protection directly supports the competitiveness of free, local broadcasting and the continued availability of high-quality programming that viewers expect.”

Numerous comments from the public in the docket were critical of broadcaster encryption. “I urge the FCC to look at individual comments submitted by consumers, not representatives of multi-billion dollar broadcast corporations like Pearl TV and the A3SA,” said YouTuber Tyler “Antenna Man” Kleinle, who has been part of several online campaigns urging consumers to file against ATSC 3.0 encryption. “DRM encryption needs to be banned on local TV broadcasts as it goes against the public interest by limiting devices the public can use to access local TV channels and drives up costs.”

Must-Carry Rules

MVPD groups said the FCC’s must-carry rules for ATSC 1.0 shouldn't apply to ATSC 3.0 broadcasts. Most current set-top boxes and consumer devices can’t support 3.0, noted the American Television Alliance. If the FCC drops the simulcast and substantially similar rules, it should require broadcasters “to deliver signals to MVPDs in a 1.0-compatible format at their cost,” the group said.

“Must carry requirements for 3.0 signals would impose substantial burdens on cable operators that would violate the First and Fifth Amendments,” said NCTA. “The incremental burdens of 3.0 carriage would force MVPDs to dedicate even more system capacity to content they otherwise would not carry, intruding on editorial control and compounding the competitive disadvantages of asymmetric regulation.”

NTCA called for the FCC to adopt rules prohibiting broadcasters from using retransmission consent agreements “as an avenue for forcing small MVPDs to purchase both new receiving equipment and new consumer set top boxes capable of receiving ATSC 3.0 signals.”

Several commenters said broadcasters’ focus on datacasting brings up public interest and anticompetitive issues. Broadcasters using the majority of their spectrum for services other than free, over-the-air television “raises significant legal questions” under the Communications Act, FCC rules and the Administrative Procedure Act, said the American TV Alliance.

ATSC 3.0 datacasting venture Edgebeam Wireless -- owned by Scripps, Gray, Nexstar and Sinclair -- “consolidates control over datacasting opportunities among a small group of dominant players, potentially foreclosing independent or smaller broadcasters from these new markets,” said the joint filing from Public Knowledge and other groups. Weigel Broadcasting argued that the FCC’s authority “does not include the power to undermine viewers’ access to free, over-the-air broadcasting in service of potential revenue from as-yet undefined non-broadcast services.”