Conflict Over 3.0 Mounts With Democrats Concerned; NAB Slams New America 'Stacked Panel'

The conflict over ATSC 3.0 rules continued Thursday. Democrats inside and outside the FCC slammed the plan, as one of the biggest groups in communications that says it represents the public interest bickered over conflicts of interest with the main broadcaster association. Commissioners may not all OK the move when they vote on it in a week.

The agency should go back to the drawing board, as any standards should be based on a framework drawn up by Congress and subjected to extensive testing, Commissioner Jessica Rosenworcel said at a New America Foundation panel that NAB called “a stage play in service of the pay-TV industry." Lobbying on the item ended after CTIA joined MVPDs expressing concerns (see 1711090003).

“Perhaps New America is looking for a new funder beyond Google?” blogged NAB Associate General Counsel Patrick McFadden. Commissioners are expected to approve rules for 3.0 at their Nov.16 meeting. Rosenworcel said the current draft item “is imprecise and cavalier in its disregard for consumers,” and Mignon Clyburn has concerns. Rosenworcel is expected to vote no, and Clyburn is seen as either a partial or full dissent, industry officials said.

The item has been the subject of heavy lobbying, an FCC official said, and it’s possible some smaller aspects could still change before the vote. Weightier provisions, such as those involving retransmission consent, are likely to stay the same, industry and FCC officials said. It’s generally “tough” to get much about a draft order changed, said panelist and NTCA Assistant General Counsel Jill Canfield.

The regulator should examine the patents associated with the new standard, Rosenworcel said, as MVPDs are raising such concerns. “When the agency adopted the ATSC 1.0 standard, it made clear that reasonable and nondiscriminatory terms were part of the package,” she said. “In the current proposal, this issue is addressed in no more than a footnote.” Many of those patents are held by Sinclair, seeking approval from the FCC to buy Tribune. “Before we authorize billions for patent holders and saddle consumers with the bills, we better understand how these rights holders will not take advantage of the special status conferred upon them by the FCC,” Rosenworcel said. She and Clyburn are seen as opponents of Sinclair/Tribune.

'Stacked Panel'

The 3.0 panel was made up of representatives from groups critical of 3.0, including the American Cable Association, American Television Alliance, Consumers Union and NTCA. They're concerned about the new standard’s effects on retransmission consent and costs to pay-TV companies and consumers.

NAB was invited to participate in the event, but declined, moderator and New America Wireless Future Program Director Michael Calabrese told us. He, too, has been a critic of the new standard. NAB declined after reviewing the “stacked panel” and deciding New America “did not want a fair and honest debate,” NAB's spokesman said. McFadden called the panel “a cable opera.”

Rosenworcel said the FCC should make the 3.0 move more closely resemble the DTV transition, with testing rounds, resources to keep consumers from having to buy new equipment, and a foundation created by Congress. “What we have instead is a few unelected FCC officials making decisions about when you need to buy new televisions, acquire new equipment,” she said. The commission should go back to the “2005 playbook,“ Rosenworcel said.

The ATSC 3.0 transition is “very different” than the digital transition, since it involves going from one digital technology to another, and broadcasters now have resources such as channel sharing available, said Anne Schelle, managing director of Pearl TV, in an interview. “We’re in a different world” than 2005, she said. Having to wait for authorization for the new standard to make it through the legislative process “could take forever,” and would make innovation very difficult, she said.

Clyburn indicated doubts about the draft Thursday, kicking off a planned weeklong “Twitter campaign” on the proposal with a tweet saying the item is “not looking good” on the matter of possible costs to consumers. “Remember when I asked as part of #NextGenTV NPRM that there be complete assurances that #consumers will not be burdened w/ unwanted, unexpected costs?” Clyburn tweeted. Reps. Anna Eshoo, D-Calif., and Michael Doyle, D-Pa., asked the FCC to delay votes on the 3.0 and media ownership orders, in a letter to Pai Wednesday. The orders should be rewritten to more closely conform to Congress' intent, the legislators said. Rep Debbie Dingell, D-Mich., recently wrote with concerns about 3.0 privacy (see 1711080052).

The order would leave too much room for anti-consumer practices, panelists said. For example, since simulcasting requirements would last until taken away under a further proceeding, but the requirement broadcasters offer “substantially similar” content on their 1.0 and 3.0 feeds sunsets after five years, stations could be incentivized to then move popular content such as NFL games to 3.0 to compel consumers to buy necessary gear, said Consumers Union Senior Policy Counsel Jonathan Schwantes. “Disenfranchising consumers may be a trade they’re willing to make” to advance the switchover, said American Cable Association Senior Vice President-Government Affairs Ross Lieberman.

Speakers expressed concern about a provision in the draft that would allow broadcasters with simulcast plans that leave less than 5 percent of their current reach without service to receive “expedited processing.” That's “millions” not receiving all broadcast service, said Lieberman. If expedited processing in the order means simulcasting is authorized in 15 days, that’s not enough time, said Harris Wiltshire attorney Michael Nilsson. It should be 45 days, and the FCC should allow public comment, Lieberman said.

Rosenworcel and panelists said the privacy concerns about 3.0 should be examined, since it would enable targeted advertising and data collection. Broadcasters disagree with such fears.

The FCC doesn’t oversee privacy, Schelle said, so there’s no need for the draft order to touch on the subject. “Broadcasters' privacy compliance is regulated by the FTC, just like digital platforms and digital advertisers,” Schelle said. “There's no need to spell that out in the standard, or the FCC's decision approving the standard.”