ATSC 3.0 Overshadowing of Flexible Use Waiver Leads to Only 6 Applications

After broadcasters pushed hard in the lead-up to the incentive auction for the option to forego repacking reimbursement in exchange for having “flexible use” of their spectrum in the aftermath, the FCC received only six applications for the “service rule” waiver needed to trigger that option by last week’s deadline. Flexible use of their spectrum will allow broadcasters to adjust to changing wireless technology and "mine for innovation,” said WatchTV President Greg Herman, an applicant. He and other broadcast officials agree lack of enthusiasm for flexible use spectrum is a consequence of the increasing viability of ATSC 3.0, which offers many of the same opportunities as flexible use did in what’s seen as a more widely accepted and clearly defined package.

“We were big proponents,” said Sinclair Vice President Advanced Technology Mark Aitken of the flexible use option. Sinclair has been one of the biggest boosters for the new TV standard. “At the time, the ATSC 3.0 process was not fully underway. There’s been a lot of time between then and now,” Aitken said. “Now we see no reason to go that route.”

The service rule waiver would allow WatchTV, LocusPoint and other broadcasters to use their spectrum in ways other than TV by agreeing not to receive any reimbursement funds for costs associated with the repacking. The FCC hasn’t decided whether to grant the waiver requests, and the applicants will apply for repacking funds as though they were going to receive them while they await a decision, said Fletcher Heald attorney Peter Tannenwald, who represents Watch TV. LocusPoint and WatchTV each have two applications, and the other two applicants are both owned by broadcaster Gary Cocola.

It’s also not well-defined what a broadcaster getting the waiver will be able to do, said Wiley Rein broadcast attorney Ari Meltzer. The FCC didn’t specify it, broadcast officials said, and the applications are varied and somewhat unclear. “The emphasis in flexible use is on flexible,” Herman told us. His application said he seeks to broadcast ATSC 3.0 signals, while LocusPoint’s application is almost entirely redacted at its request. Applicant Cocola Broadcasting will offer “a stimulus/response system capable of connecting any two way digital communications devices located within the service area of the presently licensed facilities."

A broadcaster with flexible use could offer capacity to networks using 5G or spectrum that isn’t compatible with ATSC 3.0, Herman said. Broadcasters should be able to use their spectrum in any way that’s viable and non-interfering, he said. The market will ensure the uses the spectrum is put to are practical and needed, he said. “If no one likes what I’m doing, I’m not going to keep doing it.” Many of the projected flexible uses sound similar to what’s proposed under ATSC 3.0, such as the wireless capacity consortium established by Sinclair and Nexstar, which would allow broadcasters to rent capacity to wireless carriers.

One constraint on the possible innovations under the service rule waiver is that it will still require broadcasters to offer a stream of standard definition video. LocusPoint said it will satisfy this requirement through a sharing partner -- similar to the ATSC 3.0 simulcasting plan -- while Herman suggested the rule doesn’t require the stream to be receivable by a broadcast TV. Some other technology could serve as the receiver, he said. The FCC hasn't defined required parameters of that stream, Meltzer said. If broadcasters with flexible use are required to offer a stream in TV-receivable ATSC 1.0, their spectrum isn’t flexible use at all, Tannenwald said.

The FCC didn’t comment. If the agency doesn't approve the applications, “I’ll want to know why,” said Herman.