FCC Likely To Authorize ATSC 3.0 Physical Layer, Attorneys Say

The FCC is considered likely to grant a petition from broadcasters and tech companies to authorize the physical layer of the next generation ATSC 3.0 broadcast standard (see 1404090027), broadcast attorneys told us Wednesday and Thursday. The gradual, industry-driven transition plan is seen as asking relatively little from the commission, and shouldn't be “a heavy lift,” a broadcast lawyer said. That is in keeping with recent forecasts from ATSC President Mark Richer that broadcasters and tech companies would "take the lead" at the FCC in "a unified approach" that won't be "controversial" (see 1603280043).

But attorneys and industry officials disagree what the timeline for approval of the petition might be, and what aspects of the petition might be sticking points. The plan requires a great deal of industry cooperation, and could have possible interference issues and implications for cable carriage of broadcasters, broadcast attorneys and industry officials said. However, one broadcast attorney recalled that at the NAB Show two years ago, FCC Chairman Tom Wheeler told NAB President Gordon Smith the commission would be “ready and responsive” to the push for ATSC 3.0.

Under the scenario envisioned by the petition, a broadcaster won't be able to transition to the new standard unless another broadcaster agrees to simulcast the transitioning broadcaster's channel in the current DTV standard, broadcast attorneys told us. That has the advantage of requiring few rule changes, a broadcast attorney who has followed the standard-making effort told us.

It's unclear how that simulcast situation would affect the carriage on pay-TV of must-carry channels, the attorney said. A channel that decides to receive retransmission consent fees will likely be able to negotiate carriage of its simulcast twin, but it's not clear that pay-TV carriers would be obligated to carry a simulcast version of a must-carry channel hosted by another broadcaster, the attorney said. That's an issue the FCC would likely ask about in a notice and comment period on the standard change, he said.

The transition period's reliance on cooperation between broadcasters could be a problem for smaller stations, Fletcher Heald broadcast attorney Peter Tannenwald told us. Since they won't have as much leverage as larger broadcast groups, it could be hard for them to make favorable deals for having their simulcast hosted, he said. The incentive auction could also reduce the number of broadcasters so much it's harder to find sharing partners, a broadcast attorney told us. It's in the interests of broadcasters who want to transition to get other broadcasters on board, said one attorney who supports the petition.

Since the manufacture of ATSC 3.0-compatible devices is market-driven, supporters of the shift need it to be as widely adopted as possible, making them likely to cooperate with getting other broadcasters to transition, the attorney said. Already, the petition drew low-power TV concern. “We are very concerned that the Joint Petition did not specifically mention Class A’s, LPTV, nor translators,” LPTV Spectrum Rights Coalition Director Mike Gravino said in comments filed to the FCC in response to the petition. “We are very concerned that a similar scenario will play out as did in the incentive auction, where major corporate forces will seek to prevent our members from participating in the new 3.0.” The 3.0 signals could potentially interfere with a LPTV station seeking new channels after the incentive auction, Gravino said.

There are also questions about the timing of any decision, several attorneys told us. Though one broadcast attorney said such petitions have been quickly put out for comment under Wheeler, another said FCC officials have said they're reluctant to take up a new standard until the incentive auction is complete. Though some attorneys have said it's possible for the FCC to align the repacking with approving the new standard, it may not happen, attorneys told us. The commission could seek comment on the item immediately, while waiting much longer to take substantive action, attorneys suggested. The timing matters because broadcasters may wish to use the repacking reimbursement funds to buy 3.0-compatible equipment. The FCC report and order on the reimbursement said broadcasters would be allowed to purchase equipment with “upgraded functionality” but not “optional features.”