MVPD Groups Fire Recon Petitions at ATSC 3.0; FCC Seen as Unlikely to Grant

A pair of MVPD reconsideration petitions against the ATSC 3.0 order aren’t considered likely to spur the FCC to rethink requirements for the new standard, attorneys and executives on the broadcast and MVPD sides told us. The order's effective date was Monday (see 1803050049).

The petitions from the American Television Alliance and NCTA ask the FCC to reconsider allowing broadcasters to include 3.0 carriage in retransmission consent negotiations, and to keep broadcasters from degrading their signals during the transition to the new standard. Since the FCC already rejected similar arguments during the 3.0 proceeding and remains under the same leadership, the petitions amount to “tilting at windmills,” said a cable executive.

NCTA’s petition for recon also asks the FCC to reconsider the lack of patent protections in the final order and the sunset rules on simulcasting “substantially similar” content. ATVA wants the FCC to allow low-power TV to “flash-cut” only on a case-by-case basis. The FCC’s conclusion that it wouldn’t separate negotiations over 3.0 carriage and retrans “makes no sense,” NCTA said.

“The cable industry is trotting out the same arguments the FCC already rejected,” an NAB spokesman emailed. “It’s no secret broadcast industry innovation is great for consumers, but bad for cable,” the spokesman said. “The argument that broadcasters burden their viewers by adopting a new technology has zero credibility,” said John Hane, president of the broadcaster 3.0 consortium Spectrum. “When my cable operator upgraded from MPEG 2 to MPEG 4, I don’t recall receiving a free cable box,” Hane said. “And I don’t recall the NCTA arguing that the government should limit the pace of cable innovation." “

"The broadcasters initially promised to preserve the status quo for over the air and MVPD reception of television signals while they experiment with the ‘Next Generation’ standard," emailed an NCTA spokesman. "But they’re already backing away from those promises, and the FCC declined to adopt adequate safeguards to hold them to their promises while the experiment is in progress.”

FCC arguments it’s “premature” to address issues around 3.0 carriage when broadcasters aren’t yet transmitting in the new standard overlook that uncertainty about the future of 3.0 makes this the highest risk time for MVPDs forced into carrying it, NCTA said. The order’s simulcasting requirement is intended to minimize risk to MVPDs and consumers, but that goal is undercut if broadcasters can force MVPDs into carrying 3.0 by withholding their ATSC 1.0 signal, NCTA said. “The Commission has made no effort to explain the inconsistency or justify its decision.” Broadcasters already are effectively making the transition involuntary by requiring some MVPDs to “grant ‘ATSC 3.0 MFNs’ [most-favored-nation status] for a technology that is not yet commercially available,” ATVA said. Since there's already “broadcaster misbehavior,” the FCC should reconsider allowing 3.0 carriage to be part of retrans negotiations, ATVA said.

The FCC has “no historical basis” for the five-year sunset on the simulcast “substantially similar” restriction, NCTA said. “The transition from analog to digital television, which was mandatory and eventually involved a hard end date, took 13 years.” Since no hard dates are attached to the switchover, it's “unreasonable to expect that any consumer acceptance of ATSC 3.0 will have advanced beyond the very early stages five years hence,” NCTA said. “NCTA asks for incredibly stringent simulcasting rules -- so stringent they would preclude launch of ATSC 3.0 in a great many markets,” Hane said of the petition.

NCTA and ATVA took issue with the FCC allowing broadcasters to degrade their signals during the move. “The Report and Order adopts an arbitrary approach that fails to protect the viewing public and cable operators,” NCTA said. Though ATVA conceded broadcasters aren’t currently required to broadcast their 1.0 signal in HD or notify consumers and MVPDs that a signal is downgrading to SD, they had no incentive to do so before 3.0, ATVA said. The FCC should require notifications, the coalition said. If broadcasters downgrade their signal without informing consumers, people will blame MVPDs, which will have to field the resulting calls, ATVA said. Not requiring notice “risks unnecessary consumer disruption and anger,” ATVA said.

The order adopted a “wait and see” stance on protecting MVPDs from being exploited by patents for the new standard, NCTA said. “The Commission is abdicating an important role,” and being “unduly lax,” said the group. Instead of allowing the whole class of LPTV stations to transition to ATSC 3.0 without simulcasting over concerns that LPTV stations won’t be able to find sharing partners, the FCC should change the order to favor case-by case waivers of the order’s coverage requirements, ATVA said. “Narrow waivers are a better tool than a broad exemption,” ATVA said.

Though attorneys on both sides said it's unlikely the petitions will lead to a recon order, they said some entities might see it as worthwhile to take a long shot to gauge the agency’s reaction. Such petitions also can be filed to highlight concerns over particular aspects of an order, such as the retrans concerns around 3.0, one attorney said. ATVA noted in its petition that Commissioner Mike O’Rielly said at the order’s adoption that he would be scrutinizing 3.0 carriage deals for abuses. ”I don’t know what the real goal of NCTA’s petition is, but the effect would be to reduce interplatform competition,” said Hane.