ATSC 3.0 Effect on Must Carry, Retrans Not Clear, Attorneys Say

Though the ATSC 3.0 transition plan has gotten a favorable reception from some broadcasters and FCC Chairman Tom Wheeler (see 1604200051), questions abound about how broadcasters transitioning to the new standard will interact with pay-TV providers and smaller broadcasters, broadcast and cable attorneys told us last week.

Since the petition to approve the physical layer was released for FCC comment (see 1604260064), several attorneys told us they expect such questions to be worked out over the course of the notice and comment process. An NPRM would likely follow the petition before actual rules, said Wilkinson Barker broadcast lawyer David Oxenford in a blog post. “The FCC will take these preliminary comments, digest them and then formulate its own proposal for a set of rules to govern the deployment of ATSC 3.0.”

The transition plan's interaction with the must-carry rules is one area that would need to be clarified, broadcast and cable attorneys told us. The transition plan relies on some broadcasters in a market transitioning to ATSC 3.0 while other broadcasters host the transitioning station's standard definition signal. As the shift occurs, the ATSC 3.0 stations in each market will also host 3.0 feeds for the stations that have yet to transition, according to the proposal. Since ATSC 3.0 isn't backward compatible and a station can't broadcast both standards simultaneously, the intent is that customers using either 3.0 compatible equipment or equipment for the current standard will still be able to receive their local broadcast channels, a broadcast engineer told us. Under must carry, pay-TV providers must retransmit local channels that elect must carry, but those rules weren't enacted with the thought they would also apply to simulcast version of a signal being transmitted by a third-party station, a cable attorney told us. It's possible that a cable carrier could argue that a signal in 3.0 or simulcast by another station doesn't qualify for must-carry status.

This issue is contemplated in the ATSC 3.0 petition, a broadcast attorney said. It's part of the motivation for one of the petition's requests of the FCC, that the agency designate broadcasting in 3.0 as “broadcasting” under the commission's rules. As long as picking up the simulcast or 3.0 stream isn't technically challenging or expensive, it's unlikely cable carriers would try to avoid carrying stations this way, a cable attorney told us. But he conceded that must carry exists because the channels that usually take advantage of it would likely not get pay-TV carriage otherwise, and that the more free bandwidth a pay-TV carrier has, the more flexible it can be.

The transition plan is also likely to affect retransmission consent deals with pay-TV companies, a cable attorney told us. The impact could be felt in the technical specifications of how the broadcast signal is delivered to the pay-TV carrier, and there may be provisions in retrans agreements that address the possibility of simulcasting as well, the attorney said. If the standard is approved, retrans and affiliation agreements could also affect when stations can make the transition to 3.0., since they sometimes specify aspects of the signal a broadcaster provides, a broadcast attorney told us. With 3.0 looming, future agreements are likely to take the transition into account, a broadcaster told us.

The implications of the 3.0 petition on low-power TV stations are also unknown, since they aren't mentioned in the petition. The rule changes requested by the petition don't apply to rules that govern LPTV, so it's not clear how they would be effected, a broadcast attorney told us. The LPTV Spectrum Rights Coalition raised the issue of how the petition would apply to LPTV, in a recent filing (see 1604140071).

Those sorts of questions are related to policy and regulatory matters rather than the technical issues that are the work of ATSC and its Technology Group 3, said ATSC President Mark Richer.