NPRM Asks if FCC Should Impose Rules on ATSC 3.0 Patent Licensing

In the FCC’s further NPRM on ATSC 3.0, released Wednesday in docket 16-142 (see 2206220067), the commission seeks comment on the extent to which patent licensing may be “inhibiting the development of 3.0 TV sets or other 3.0 equipment by non-patent holders.” Comments are due 30 days, replies 60 days, after the NPRM is published in the Federal Register.

The commission wants to know how well patent holders are living up to their commitments to ATSC to license their 3.0-essential intellectual property on fair, reasonable and nondiscriminatory (FRAND) terms, said the NPRM. “How have the available licensing terms impacted current and potential participants in the 3.0 marketplace, the deployment of 3.0 services, and the availability of consumer devices?” the NPRM asks.

When the FCC voted in November 2017 to authorize 3.0's voluntary deployment, it deemed it “premature” to impose rules on 3.0 patent licensing “in the absence of any issues,” says the NPRM. If there have been any developments that would now warrant FCC regulatory action on 3.0 patent licensing, the commission wants to know “what precisely should such a rule require and upon what authority would the rule be based?” it asks. The NPRM also seeks more information about MPEG LA’s 3.0 patent pool, including whether its “portfolio license” is being made available on FRAND terms, and what 3.0-essential patents are missing from the pool.

MPEG LA debuted its one-stop 3.0 patent pool in January with 13 licensors of 19 patents (see 2201200058). "FRAND is an undertaking by individual patent holders who participate in standards setting organizations," said MPEG LA then. "MPEG LA does not participate in standard setting organizations and its licenses make no representation to that effect.”

Dolby’s AC-4 audio codec, used in 3.0's U.S. deployment but not part of the MPEG LA patent pool, was the centerpiece of a January legal battle in U.S. District Court in Manhattan, where LG alleged Dolby reneged on its commitments to ATSC and other standards-setting organizations to license its AC-4 patents on FRAND terms (see 2201090001). The lawsuit, the only known U.S. court challenge involving 3.0-essential patents, was settled in February.

In the NPRM, the commission seeks to delve into how well a consumer market is developing for 3.0-capable TVs. The commission asks how many 3.0 TVs have been sold in the U.S., and the extent to which consumers who own the product are aware that 3.0 functionality is embedded in their TVs.

Noting LG, Samsung and Sony are the only manufacturers fielding 3.0-capable TVs, with Hisense set to jump in later this year, the commission wants to know if others are planning to market the product and at what prices, especially when compared with TVs without 3.0 functionality, says the NPRM. “What challenges or impediments exist, if any, for manufacturers seeking to develop and manufacture 3.0 TV sets and other 3.0 TV equipment?” it asks. “To what extent, if any, is patent licensing inhibiting the development of 3.0 TV sets or other 3.0 equipment by non-patent holders?”