Rule2023-14408
Authorizing Permissive Use of the “Next Generation” Broadcast Television Standard
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 17, 2023
Effective
August 16, 2023
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) makes changes to its Next Gen TV rules designed to preserve over-the-air (OTA) television viewers' access to the widest possible range of programming while also supporting television broadcasters' transition to the next generation of broadcast television technology. In the first part of this Order, the Commission establishes a licensing regime for Next Gen TV stations' multicast streams that are aired on host stations during the transition period. In the second part of this Order, the Commission retains the substantially similar rule and the requirement to comply with the ATSC A/322 standard.
Full Text
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<title>Federal Register, Volume 88 Issue 135 (Monday, July 17, 2023)</title>
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[Federal Register Volume 88, Number 135 (Monday, July 17, 2023)]
[Rules and Regulations]
[Pages 45347-45369]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-14408]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 74
[GN Docket No. 16-142; FCC 23-53; FR ID 152588]
Authorizing Permissive Use of the ``Next Generation'' Broadcast
Television Standard
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) makes changes to its Next Gen TV rules designed to
preserve over-the-air (OTA) television viewers' access to the widest
possible range of programming while also supporting television
broadcasters' transition to the next generation of broadcast television
technology. In the first part of this Order, the Commission establishes
a licensing regime for Next Gen TV stations' multicast streams that are
aired on host stations during the transition period. In the second part
of this Order, the Commission retains the substantially similar rule
and the requirement to comply with the ATSC A/322 standard.
DATES: Effective August 16, 2023, except for Sec. Sec. 73.3801(f) and
(i), 73.6029(f) and (i), and 74.782(g) and (j) which contain
information collection requirements that are not effective until
approved by the Office of Management and Budget (OMB). The Commission
will publish a document in the Federal Register announcing the
effective date for these sections. In addition, effective August 16,
2023, the stay on 47 CFR 73.682(f)(2)(iii) is lifted.
FOR FURTHER INFORMATION CONTACT: For additional information, contact
Evan Baranoff, <a href="/cdn-cgi/l/email-protection#236655424d0d614251424d4c4545634540400d444c55"><span class="__cf_email__" data-cfemail="652013040b4b270417040b0a0303250306064b020a13">[email protected]</span></a>, of the Media Bureau, Policy
Division, (202) 418-7142. Direct press inquiries to Janice Wise at
(202) 418-8165. For additional information concerning the Paperwork
Reduction Act information collection requirements contained in this
document, send an email to <a href="/cdn-cgi/l/email-protection#e7b7b5a6a7818484c9808891"><span class="__cf_email__" data-cfemail="6f3f3d2e2f090c0c41080019">[email protected]</span></a> or contact Cathy Williams at
(202) 418-2918.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Report and Order, in GN Docket No. 16-142; FCC 23-53, adopted on June
20, 2023 and released on June 23, 2023. The full text of this document
is available electronically via the FCC's website at <a href="https://docs.fcc.gov/public/attachments/FCC-23-53A1.pdf">https://docs.fcc.gov/public/attachments/FCC-23-53A1.pdf</a> or via the FCC's
Electronic Comment Filing
[[Page 45348]]
System (ECFS) website at <a href="https://www.fcc.gov/ecfs">https://www.fcc.gov/ecfs</a> (Documents will be
available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat). Alternative formats are available for people with
disabilities (Braille, large print, electronic files, audio format), by
sending an email to <a href="/cdn-cgi/l/email-protection#d9bfbabaece9ed99bfbabaf7beb6af"><span class="__cf_email__" data-cfemail="4f292c2c7a7f7b0f292c2c61282039">[email protected]</span></a> or calling the Commission's Consumer
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY).
Synopsis
I. Introduction
1. In this Third Report and Order in the Next Generation Broadcast
Television (ATSC 3.0 or Next Gen TV) docket, we make changes to our
Next Gen TV rules designed to preserve over-the-air (OTA) television
viewers' access to the widest possible range of programming while also
supporting television broadcasters' transition to the next generation
of broadcast television technology. These changes are based on the
records collected in response to both the Next Gen TV Multicast
Licensing FNPRM, 86 FR 70793 (Dec. 13, 2021), and the Sunsets FNPRM, 87
FR 40464 (Jul 7, 2022). We generally adopt our proposal in the Next Gen
TV Multicast Licensing FNPRM to allow a Next Gen TV station \1\ to seek
modification of its license \2\ to include certain of its non-primary
video programming streams (multicast streams) \3\ that are aired on
``host'' stations \4\ during a transitional period. In adopting this
proposal, we follow the same licensing framework, and to a large extent
the same regulatory regime, established for the simulcast of primary
video programming streams on ``host'' station facilities.\5\ We also
extend the sunsets of, and thus retain in effect until at least July
17, 2027, the substantially similar rule for simulcast streams and the
requirement to comply with the ATSC A/322 standard on primary 3.0
streams.\6\
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\1\ By ``Next Gen TV'' broadcaster or station, we mean a
television broadcaster or station that has obtained Commission
approval and commenced broadcasting its signal using the ATSC 3.0
standard in its local market. A station can deploy ATSC 3.0 service
either by converting its own facility to ATSC 3.0 or by airing its
ATSC 3.0 signal(s) on a station in its local market that has
converted its facility to ATSC 3.0 (which we refer to as an ATSC 3.0
``host'' station). For purposes of this Report and Order, a
station's ``own'' channel or facility refers to the channel and
facility on which it operated prior to its transition to ATSC 3.0
(even if it has already converted to operate in 3.0). We use this
term to distinguish between operations on this facility and a
station's operations as a guest on a host facility.
\2\ While in this document we may refer to the licensing of
multicast streams, we clarify that we are establishing a process to
license a guest Next Gen TV station capacity on a host's channel for
the purpose of airing one or more guest multicast streams.
Consistent with the Next Gen TV Multicast Licensing FNPRM, each
portion of a host channel that is being licensed by a guest station
to air one or more programming streams will be separately authorized
channels under the originating (guest) broadcaster's single, unified
license.
\3\ For purposes of this Report and Order, ``multicast''
stream(s) refers to a TV broadcast station's non-primary video
programming stream(s); that is, stream(s) other than the station's
primary video programming stream.
\4\ A ``host'' station is one whose facilities are being used to
transmit programming originated by another station (i.e., ``guest'')
as part of a local simulcasting arrangement.
\5\ We note that our rules do not prohibit the use of private
contractual arrangements for partner stations to air their multicast
streams. For regulatory compliance purposes, such streams would be
considered multicast streams of the host partner station, not the
originator (guest) station.
\6\ The Commission will initiate a review approximately one year
before these rules are set to expire to seek comment on whether they
should be extended based on marketplace conditions at that time.
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2. Given that Next Gen TV stations must, without any additional
allocation of spectrum, continue serving ATSC 1.0 viewers while
voluntarily transitioning to ATSC 3.0, we seek to take actions that
will minimize viewer disruption as much as possible during this limited
transition period. Specifically, this Report and Order seeks to
facilitate and encourage partnerships that will minimize potential
disruptions by permitting stations in a market to work together to
preserve viewers' access to ATSC 1.0-formatted programming during the
transition. We intend simultaneously to facilitate broadcasters'
voluntary transition to ATSC 3.0, which can provide consumers with the
benefit of new and innovative services, while protecting the vast
majority of over-the-air TV viewers who continue to rely on 1.0
equipment.
3. In the accompanying Fourth Further Notice of Proposed Rulemaking
(RAND FNPRM), published elsewhere in this issue of the Federal
Register, we seek to further our understanding of the current
marketplace for ATSC 3.0 Standard Essential Patents (SEPs) and the
ability of third parties to develop products that rely upon them. We
also seek comment on the impact on consumers if the Commission were to
adopt, or not adopt, rules to require essential patent holders in 3.0
technology to commit to licensing them on reasonable and non-
discriminatory (RAND) terms.
II. Background
4. In 2017, the Commission authorized television broadcasters to
use the Next Gen TV transmission standard, also called ``ATSC 3.0'' or
``3.0,'' on a voluntary, market-driven basis.\7\ The Commission
required that broadcasters voluntarily deploying ATSC 3.0 service must,
with very limited exceptions,\8\ continue to air at least their primary
streams using the current-generation TV transmission standard, also
called ``ATSC 1.0'' or ``1.0,'' to their viewers through ``local
simulcasting.'' Under the Commission's rules, Next Gen TV broadcasters
are encouraged, but not required, to simulcast their 3.0 multicast
streams in a 1.0 format.
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\7\ Next Gen TV is the newest broadcast TV transmission
standard, developed by the Advanced Television Systems Committee
(ATSC), which promises to enable broadcasters to deliver an array of
new video and non-video services and enhanced content features to
consumers. ATSC 3.0 merges the capabilities of over-the-air (OTA)
broadcasting with the broadband viewing and information delivery
methods of the internet, using the same 6 MHz channels presently
allocated for TV service. As 3.0 proponents have previously
explained to the Commission, the greater spectral capacity of the
new standard and its internet-Protocol delivery component will allow
broadcasters to provide consumers with a higher quality television
viewing experience, such as ultra-high-definition (UHD) picture
resolutions and immersive audio. It also has the potential to enable
broadcasters to reach viewers on both home and mobile screens. In
addition, ATSC 3.0 will allow broadcasters to offer enhanced public
safety capabilities, such as geo-targeting of emergency alerts to
tailor information to particular communities and emergency alerting
capable of waking up sleeping devices to warn consumers of imminent
emergencies, as well as greater accessibility options, localized
content, and interactive educational children's content.
\8\ LPTV and TV translator stations may deploy ATSC 3.0 service
without providing an ATSC 1.0 simulcast signal. In addition, full
power and Class A stations may request a waiver of the simulcast
requirements.
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5. The Commission found that the local simulcasting requirement is
crucial to deploying Next Gen TV service in a manner that minimizes
viewer disruption. The Next Gen TV standard is not backward-compatible
with existing TV sets or receivers, which have only ATSC 1.0 and analog
tuners. Accordingly, viewers will be unable to watch ATSC 3.0
transmissions on their existing televisions without additional
equipment. Thus, it is critical that Next Gen TV broadcasters continue
to provide service using the current ATSC 1.0 standard while the
consumer equipment marketplace adopts televisions and converter devices
compatible with the new 3.0 transmission standard. This is necessary in
order to avoid forcing viewers to acquire expensive new equipment
immediately or depriving them of their local television service during
the transition. Because a TV station cannot, as a technical matter,
simultaneously broadcast in both 1.0 and 3.0 format from the same
facility on the same physical channel, local simulcasting must be
effectuated through voluntary
[[Page 45349]]
partnerships that broadcasters seeking to provide Next Gen TV service
enter into with other broadcasters in their local markets. A Next Gen
TV station must partner with another television station (i.e., a
temporary ``host'' station) in its local market to either: (1) air an
ATSC 3.0 channel at the temporary host's facility, while using its
original facility to continue to provide an ATSC 1.0 simulcast channel,
or (2) air an ATSC 1.0 simulcast channel at the temporary host's
facility, while converting its original facility to the ATSC 3.0
standard in order to provide a 3.0 channel.\9\ A Next Gen TV station's
ATSC 1.0 ``simulcast'' must be ``substantially similar'' to that of the
primary video programming stream on the ATSC 3.0 channel. Substantially
similar ``means that the programming must be the same except for
advertisements, promotions for upcoming programs, and programming
features that are based on the enhanced capabilities of ATSC 3.0.''
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\9\ In either case, a Next Gen TV broadcaster must simulcast the
primary video programming stream of its ATSC 3.0 channel in an ATSC
1.0 format, so that viewers will continue to receive ATSC 1.0
service. By the time the transition is complete, any temporary
authority granted for local simulcasting will expire, and a station
will once again be required to air all of its licensed programming
on its own single channel. In June 2022, the Commission initiated a
proceeding to consider the state of the transition and the Next Gen
TV marketplace.
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6. The process for considering applications to deploy ATSC 3.0
service includes coverage requirements for a Next Gen TV station's ATSC
1.0 simulcast signal.\10\ The Commission sought to minimize disruption
to viewers resulting from the voluntary deployment of ATSC 3.0 while
recognizing that if a station moves its ATSC 1.0 signal to a partner
simulcast host station with a different transmitter location, some OTA
viewers may no longer be able to receive the station's 1.0 signal.
Among other obligations, the Commission requires the Next Gen TV
station to select a partner 1.0 simulcast host station that is assigned
to its same designated market area (DMA) and from which it will
continue to provide ATSC 1.0 simulcast service to its entire community
of license.\11\
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\10\ A Next Gen TV broadcaster must file an application and
obtain Commission approval before a 1.0 simulcast channel or a 3.0
channel aired on a partner host station can go on the air, as well
as before an existing 1.0 station can convert to 3.0 operation or
back to 1.0 operation.
\11\ Because Class A TV stations do not have a community of
license, the Commission established a coverage requirement based on
contour overlap and mileage. Some stations may not be formally
assigned by Nielsen to DMAs. As stated in the Next Gen TV First
Report and Order, ``we will consider stations that are not assigned
to a DMA by Nielsen to be assigned to the DMA in which they are
located.''
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A. Multicast Licensing
7. According to the National Association of Broadcasters (NAB), as
ATSC 3.0 deployment has progressed, broadcasters interested in
transitioning to ATSC 3.0 while maintaining their current programming
streams have faced challenges finding partner stations willing to host
broadcasters' multicast streams through private contractual agreements.
Moreover, NAB states that Next Gen TV broadcasters want to ``continue
to serve audiences with multicast streams,'' even though they are not
required to do so. NAB contends that stations are hesitant to serve as
hosts pursuant to private arrangements due to concerns about regulatory
liability and whether such private multicast agreements are expressly
permitted under the Commission's ATSC 3.0 rules. Moreover, NAB observes
that ``a purely contractual approach [to ATSC 3.0 deployment-related
sharing arrangements] would exclude noncommercial stations from
participating in sharing arrangements to host commercial multicast
streams'' under section 399B of the of the Communications Act. In
addition, NAB asserts that if broadcasters execute hosting agreements
for their multicast streams that are not reflected on the license of
the originating station, ``the Commission might not retain enforcement
authority'' over the originating station with respect to that guest
stream.\12\
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\12\ The NAB asserts that these issues ``could create complex
contractual indemnification concerns that could complicate
deployment,'' particularly for NCE stations, ``some of which are
restricted or prohibited entirely from agreeing to
indemnification.''
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8. Because our existing rules do not address a guest station's
licensing of a host station's spectrum to air multicast streams, even
with regard to the host that is airing the guest station's primary
stream, the Media Bureau implemented an interim process by which a Next
Gen TV broadcaster that has converted or is seeking to convert its
facility to 3.0 can seek special temporary authority (STA) to air 1.0
multicast streams on a host station. Just as under the current rules
for primary guest streams, these STAs permit a guest multicast stream
to be treated as if it originated from the Next Gen TV broadcaster's
facility, as opposed to the host station's facility, for purposes of
the Commission's rules and the Communications Act. The STAs granted to
date are valid for six months but may be renewed. This case-by-case
process is resource-intensive for both the Commission and broadcasters,
in addition to making it difficult for potential viewers to track where
streams are being hosted.
9. In November 2020, NAB filed a Petition for Declaratory Ruling
and Petition for Rulemaking (Petition) asking the Commission to allow
Next Gen TV stations to seek modification of their licenses to include
certain of their multicast streams that are aired in a different
service on host stations during the period of transition to 3.0. In
response to the NAB Petition, we adopted the Next Gen TV Multicast
Licensing FNPRM,\13\ which:
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\13\ Comments were due February 11, 2022 and reply comments were
due March 14, 2022.
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<bullet> Proposed to license a Next Gen TV broadcaster's simulcast
multicast stream(s) either together with its primary stream on the
primary simulcast host or on different simulcast host(s). A ``simulcast
multicast stream'' in the context of this proceeding is a multicast
stream that is aired by a Next Gen TV station, in substantially similar
fashion,\14\ in both 1.0 and 3.0 formats throughout the mandatory local
simulcasting period.\15\
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\14\ As with primary streams, ``substantially similar''
multicast streams must have the same programming, except for
programming features that are based on the enhanced capabilities of
ATSC 3.0, including targeted advertisements and promotions for
upcoming programs. Such enhanced content or features that cannot
reasonably be provided in ATSC 1.0 format include: ``hyper-
localized'' content (e.g., geo-targeted weather, targeted emergency
alerts, and hyper-local news), programming features or improvements
created for the 3.0 service (e.g., emergency alert ``wake up''
ability and interactive programming features), enhanced formats made
possible by 3.0 technology (e.g., 4K or HDR), and any
personalization of programming performed by the viewer and at the
viewer's discretion.
\15\ That is, we mean either (1) a 1.0 multicast guest stream
aired on a host that is a simulcast of a 3.0 multicast stream aired
by the Next Gen TV station, or (2) a 3.0 multicast guest stream
aired on a host that is a simulcast of a 1.0 multicast stream aired
by the Next Gen TV station. For example, in this situation, Station
A converts to 3.0 and arranges for Station B (remaining in 1.0) to
host Station A's primary stream and one multicast stream in 1.0;
Petitioner wants the multicast stream, like the primary stream, to
be licensed to Station A, the originator of the streams. In
addition, if Station A arranges for Station C (not the primary host)
to host a second multicast stream in 1.0, that multicast stream
would also be licensed to Station A. In these examples, Station A
would itself be broadcasting both multicast streams in 3.0.
Likewise, if a station remained in 1.0, it would be allowed to
license its 3.0 multicast streams aired either by the primary host
or a secondary host. In these situations, the multicast channels are
being simulcast.
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<bullet> Proposed to license a Next Gen TV broadcaster's ``non-
simulcast'' 1.0 multicast stream(s) either together with its primary
stream on its primary 1.0 host or on different 1.0 simulcast host(s). A
``non-simulcast 1.0 multicast stream'' in the context of this
proceeding is a multicast stream that is
[[Page 45350]]
aired only in 1.0 format and not in 3.0 format.\16\
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\16\ For example, using Stations A, B, and C from the prior
example, Station A (the 3.0 host) only has enough capacity to air
its primary channel, Station B's primary channel, and Station C's
primary channel in 3.0, but wants to continue to provide its
multicast channels in 1.0 during the transition. In this situation,
Stations B and C would each be hosting a multicast stream licensed
to Station A, but neither multicast stream would be simulcast. Thus,
by ``non-simulcast 1.0 multicast stream,'' we refer to a multicast
stream that was originated by a Next Gen TV station and aired in 1.0
format either on its own channel or a 1.0 host's channel, but that
has no ``substantially similar'' stream being aired in 3.0 format by
the originating station, whether on its own channel or on a 3.0
host's channel.
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<bullet> Declined to consider NAB's proposal to license a Next Gen
TV broadcaster's ``non-simulcast'' 3.0 multicast stream(s) either
together with its primary stream on its primary 3.0 host or on
different 3.0 host(s). A ``non-simulcast 3.0 multicast stream'' in the
context of this proceeding is a multicast stream that is aired only in
3.0 format and not in 1.0 format.
<bullet> Proposed to allow, under certain circumstances, a Next Gen
TV station to simulcast its primary stream programming both on its
primary stream host and on a multicast stream carried by a different
partner station in order to minimize the impact of service loss that
would result if it were only able to air its primary stream on a single
host.
The Next Gen TV Multicast Licensing FNPRM also considered whether
to limit the amount of host capacity that may be used by a given Next
Gen TV station, and, in particular, sought comment on NAB's proposal
that: ``In arranging for the hosting of its programming, no individual
broadcaster shall partner with other stations to host, in the
aggregate, more programming than such station could broadcast on its
own facilities based on the then-current state of the art for
television broadcasting as evidenced by other television stations then
operating with the same standard.'' In response to the Next Gen TV
Multicast Licensing FNPRM, we received comments, reply comments, and ex
parte communications from 15 different parties, including 10 broadcast
station groups and associations (including NAB) and two multichannel
video programming distributor (MVPD) associations.
B. Sunsets
10. ``Substantially Similar'' Rule. In the First Next Gen TV Report
and Order, 83 FR 4998 (Feb. 2, 2018), the Commission adopted a
requirement that the programming aired on a Next Gen TV station's ATSC
1.0 simulcast channel be ``substantially similar'' to that of the
primary video programming stream on the ATSC 3.0 channel.\17\ This
means that the programming must be the same, except for programming
features that are based on the enhanced capabilities of ATSC 3.0 and
promotions for upcoming programs. In adopting this approach, the
Commission found it ``will help ensure that viewers do not lose access
to the broadcast programming they receive today, while still providing
flexibility for broadcasters to innovate and experiment with new,
innovative programming features using Next Gen TV technology.'' The
Commission decided, however, that the substantially similar requirement
would expire on July 17, 2023, unless the Commission takes action to
extend it.\18\ In this regard, the Commission concluded that, while
``this [substantially similar] requirement is necessary in the early
stages of ATSC 3.0 deployment, it could unnecessarily impede Next Gen
TV programming innovations as the deployment of ATSC 3.0 progresses.''
The Commission further stated that it ``intend[ed] to monitor the ATSC
3.0 marketplace,'' and would ``extend the substantially similar
requirement if necessary.'' The substantially similar rule took effect
on July 17, 2018, and is set to expire on July 17, 2023, unless
extended by the Commission.\19\ The Commission affirmed this decision
in 2020, but stated that, approximately one year before the requirement
is set to expire, it would seek comment on whether the rule should be
extended based on marketplace conditions at that time.
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\17\ We refer to this as the substantially similar rule. The
substantially similar rule is independent of the requirement for
Next Gen TV broadcasters to simulcast in 1.0 format, a requirement
that does not have a sunset date.
\18\ We emphasize that the underlying requirement that a Next
Gen TV station must simulcast in 1.0 format does not have a sunset
date. In addition, none of the other aspects of the local
simulcasting rules are set to expire, including those governing
simulcast arrangements and agreements; DMA and community of license
coverage; and MVPD notices and consumer education.
\19\ The local simulcasting rules, sections 73.3801, 73.6029,
and 74.782, took effect on July 17, 2018.
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11. Requirement to comply with the ATSC A/322 standard. In
authorizing use of the Next Gen TV broadcast transmission standard, the
Commission in the First Next Gen TV Report and Order required
compliance with only two parts of the ATSC 3.0 suite of standards: (1)
ATSC A/321:2016 ``System Discovery & Signaling'' (A/321),\20\ which is
the standard used to communicate the RF signal type that the ATSC 3.0
signal will use; and (2) A/322:2016 ``Physical Layer Protocol'' (A/
322),\21\ which is the standard that defines the waveforms that ATSC
3.0 signals may take.\22\ In requiring compliance with A/322, the
Commission observed that ``device manufacturers and MVPDs may not be
able to reliably predict what signal modulation a broadcaster is using
unless broadcasters are required to follow A/322,'' at least with
respect to their required primary programming stream. The Commission
explained that ``[t]his uncertainty could cause manufacturers to
inadvertently build equipment that cannot receive Next Gen TV
broadcasts or could render MVPDs unable to receive and retransmit the
signals of Next Gen TV stations. These outcomes would harm consumers.''
The Commission, however, decided that it was not appropriate at the
time ``to require broadcasters to adhere to A/322 indefinitely,''
explaining that ``the ATSC 3.0 standard could evolve, and stagnant
Commission rules could prevent broadcasters from taking advantage of
that evolution.'' The Commission thus determined that the requirement
to comply with the A/322 standard would expire on March 6, 2023, absent
Commission action to extend it. In establishing a sunset for A/322
compliance, the Commission sought to ``balance [its] goals of
protecting consumers while promoting innovation.'' \23\ The Commission
affirmed this decision in 2020, but stated that, approximately one year
before the requirement is set to expire, it would seek comment on
whether the rule should be extended based on marketplace conditions at
that time.
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\20\ See ATSC A/321:2016 ``System Discovery & Signaling''
(2016), <a href="https://www.atsc.org/wp-content/uploads/2016/03/A321-2016-System-Discovery-and-Signaling.pdf">https://www.atsc.org/wp-content/uploads/2016/03/A321-2016-System-Discovery-and-Signaling.pdf</a>.
\21\ See ATSC A/322:2016 ``Physical Layer Protocol'' (2016),
<a href="https://atsc.org/wp-content/uploads/2016/10/A322-2016-Physical-Layer-Protocol.pdf">https://atsc.org/wp-content/uploads/2016/10/A322-2016-Physical-Layer-Protocol.pdf</a>.
\22\ These two standards were incorporated by reference into the
Commission's rules. The Commission applied the A/322 standard only
to a Next Gen TV station's primary, free, OTA video programming
stream.
\23\ On March 6, 2023, the Commission temporarily extended this
requirement pending further Commission action on the sunset.
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12. In June 2022, we adopted a Third Further Notice of Proposed
Rulemaking (Sunsets FNPRM) in the Next Gen TV docket considering and
seeking comment on the state of the Next Gen TV transition and on the
scheduled sunsets of the substantially similar rule and the requirement
to comply with the ATSC A/322 standard. In response to the Sunsets
FNPRM, the Commission received comments and reply comments from 32
different parties.
[[Page 45351]]
III. Discussion
13. In this Order, we largely adopt the rules proposed in the Next
Gen TV Multicast Licensing FNPRM, establishing a licensing regime for
Next Gen TV stations' multicast streams that are aired on host stations
during the transition period. The rules we adopt facilitate and
encourage Next Gen TV stations to preserve consumer access to multicast
programming in 1.0 format during the voluntary ATSC 3.0 transition.
They will provide the industry with regulatory certainty about the
legal treatment of licensed multicast streams; clarify that the
originating station (and not the host station) is responsible for
regulatory compliance regarding a multicast stream being aired on a
host station; give the Commission clear enforcement authority over the
originating station in the event of a rule violation on the hosted
multicast programming stream; and facilitate NCE stations' 3.0
deployment by allowing them to serve as hosts to commercial stations'
multicast streams. We recognize that allowing Next Gen TV stations to
seek modification of their licenses to include capacity on multiple
host stations represents a notable departure from our present licensing
regime. We also recognize that every such departure in aid of the
voluntary NextGen TV transition, however minor it may appear, results
in potential consumer harm and expense. For example, each time a stream
is hosted on a different facility with a different noise-limited
service contour (NLSC), some current viewers may lose a signal on which
they may have come to rely, for the entire uncertain duration of the
transition. By the same token, some viewers who were not previously in
the coverage area may receive the signal for the first time. These
viewers may come to rely on a signal that may be permanently lost at
the end of the transition. Even in the case where a hosted stream
covers the entire NLSC of the originating station, each time a change
is made every single viewer must rescan each of their televisions and
other receive devices to continue to receive that signal. In
considering proposals like those in this proceeding, we therefore must
weigh these inescapable harms, along with others unique to specific
proposals, against the benefits that permitting additional flexibility
in our licensing procedures may provide. In the case of the rules and
flexibility adopted in this Order, we find that departing from our
licensing regime is appropriate because it is limited to the temporary
broadcast transition to 3.0 and to specific situations for which there
is a clear need. Where we have declined to adopt the flexibility sought
by broadcasters, it is because the record does not demonstrate that the
needs and benefits outweigh the harms.
14. First, we conclude that Next Gen TV stations may seek
modification of their licenses to include one or more simulcast
multicast streams on a host station or stations, whether that guest
stream is a 1.0 or 3.0 simulcast (``simulcast'' multicast streams).
Second, we conclude that Next Gen TV stations that are broadcasting in
3.0 on their own channels may seek modification of their licenses to
include one or more multicast streams aired only in 1.0 format on a
host station or stations even if they are not simulcasting that stream
in 3.0 (``non-simulcast'' 1.0 multicast streams). To permit the
licensing of multicast streams on a host, each of the originating
station's guest multicast streams will be licensed as a temporary
channel in the same manner as its primary stream is licensed on the
primary host. That is, each of the originating station's guest
multicast streams aired on a host will be considered to be an
additional, separately authorized channel under the originating
station's single, unified license. Third, we decline to address
comments asking us to allow the licensing of 3.0 non-simulcast
multicast streams (aired as guest streams on a 3.0 host station, as
opposed to aired on a 3.0 station's own facility) because we
specifically did not seek comment on this issue. Fourth, we limit the
number of 1.0 guest streams that may be included in the license of a
single Next Gen TV station to those which it would have the capacity to
transmit over its own facility in 1.0. Fifth we allow, in certain
circumstances, a Next Gen TV station to simulcast its primary stream
programming both on its primary stream host and on a multicast stream
carried by a different partner station in order to minimize the impact
of 1.0 primary service loss that would result if originating station
were only able to air its primary stream on a single host. Sixth, we
extend the ``ownership waiver'' that applies in the primary stream
context to ensure that hosted multicast streams do not implicate our
broadcaster attribution rules, while reiterating that any changes in
our rules governing multicast streams, including any changes adopted in
the ongoing ownership proceeding, will apply equally to hosted
multicast streams. Seventh, we decline to license same service (or
``lateral'') hosting arrangements. Eighth, we conclude that we will
generally apply the same ATSC 3.0 transition rules to licensed
multicast streams as we do to primary simulcast streams. Ninth, we
conclude that our multicast licensing rules will apply until the
Commission eliminates the mandatory local simulcasting requirement.
Finally, we extend the sunset dates for the substantially similar rule
for simulcast streams and the requirement to comply with the ATSC A/322
standard on primary 3.0 streams.
A. Simulcast Multicast Streams
15. We adopt our unopposed tentative conclusion to allow a Next Gen
TV broadcaster to seek modification of its license to include its
simulcast multicast stream(s), whether they are hosted together with
its primary stream on the primary simulcast host or on different
simulcast host(s). That is, a Next Gen TV station may seek modification
of its license to include one or more of its multicast streams, hosted
by one or more partner stations, whenever the Next Gen TV station is
airing that multicast stream in ``substantially similar'' fashion in
both 1.0 and 3.0 formats and otherwise complying with the capacity,
coverage, and other requirements discussed below. Broadcasters support
this proposal,\24\ and no commenter raised any concerns about
permitting the licensing of simulcast multicast streams. We adopt our
tentative conclusion that any ``simulcast'' multicast streams must be
``substantially similar'' as that term is
[[Page 45352]]
defined in our rules and will apply this requirement for as long as it
applies to primary simulcasts. In order to be considered a
``simulcast,'' a 1.0 multicast stream must be paired, one to one, with
an identified 3.0 multicast stream.\25\ We find that permitting the
licensing of simulcast multicast streams best meets our dual goals of
facilitating the transition to 3.0 and protecting current 1.0 viewers
for the reasons discussed above, including by allowing NCE stations to
host commercial multicast streams without violating section 399B. We
again emphasize, however, that like local simulcasting arrangements for
primary streams, hosting arrangements for multicast streams are
temporary ones made to facilitate the station's transition to 3.0
service. Any service temporarily provided by such a multicast stream
beyond the station's NLSC is incidental and may not be considered for
securing any rights or benefits, now or in the future.\26\
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\24\ As explained in the Next Gen TV Multicast Licensing FNPRM,
the Commission did not address the issue of multicast licensing when
adopting its initial rules. Instead, by default, multicast
arrangements were left to private contractual arrangements and more
recently to the STA process. We thus reject ONE Media's
characterization of our existing rules. We clarify that the existing
rules (relating to a Next Gen TV station's primary stream aired on a
host) authorize only the use of the amount of capacity on a host's
channel that is necessary for airing the guest's primary stream. The
Commission did not previously authorize a guest station's use of
host capacity for airing anything other than the guest's primary
stream. We further clarify that we are authorizing a guest station
to use host capacity only for the specific purpose of airing
specific programming streams, each of which must be identified in
the license application. We also thus reject ONE Media's position
that ``a guest station can use its capacity on the licensed host
channel(s) for whatever programming or data services it wants.'' To
be clear, guest stations (1.0 or 3.0) may never license host
capacity for ancillary or supplemental services (also called
Broadcast Internet services), although we note they may lease excess
capacity from a host for such purposes through a private contractual
arrangement. Moreover, guest stations on a 3.0 host, of course, may
air 3.0 features even if separately provided from the programming
stream (e.g., advanced emergency alerts), as such features are not
ancillary or supplemental services but rather enhanced programming
features.
\25\ Multicast streams serving to deliver a primary stream's
signal in order to minimize 1.0 primary stream service loss are the
sole exception to this requirement.
\26\ At the conclusion of the transition, each Next Gen TV
station will resume service exclusively from its own facility,
serving its existing NLSC. Because any service beyond this area will
be temporary, such service will not be considered by the Commission
in other contexts (e.g., must carry demands, market modifications,
petitions for rulemaking to change a community of license, etc.).
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B. Non-Simulcast 1.0 Multicast Streams
16. We also adopt our tentative conclusion and will allow a Next
Gen TV broadcaster to seek modification of its license to include its
1.0 non-simulcast multicast streams, whether they are hosted together
with its primary stream on the primary simulcast host or on different
simulcast host(s).\27\ That is, a Next Gen TV station broadcasting in
3.0 on its own channel may seek modification of its license to include
one or more 1.0 multicast streams aired on a 1.0 host or hosts, even
when it is not simulcasting that multicast stream on a paired stream in
a 3.0 format, so long as it is otherwise complying with the capacity,
coverage, and other requirements discussed below.\28\ Broadcaster
commenters support allowing the licensing of 1.0 non-simulcast
multicast streams,\29\ while MVPD commenters do not oppose such
licensing, provided it is subject to reasonable limitations.\30\ Like
the licensing of 1.0 simulcast multicast streams, we find that
permitting the licensing of 1.0 non-simulcast multicast streams will
help preserve existing service and will achieve the goals discussed
above, including by allowing NCE stations to host commercial multicast
streams without violating section 399B.\31\ We agree with broadcasters
that allowing multicast licensing for 1.0 non-simulcast multicast
streams will benefit consumers by preserving viewer access to 1.0
multicast streams, particularly in situations where broadcasters that
have transitioned to 3.0 on their own channels lack capacity to air
their multicast streams on their 3.0 facilities. As observed in the
Next Gen TV Multicast Licensing FNPRM, at this early stage of the
transition ATSC 3.0 capacity will be limited. During the initial roll-
out of 3.0 service, we expect markets will generally start with one or
two ATSC 3.0 ``lighthouse'' stations, leaving capacity on 3.0
lighthouse stations mostly--if not entirely--for Next Gen TV stations'
primary streams. We agree with broadcasters that denying them this
flexibility would likely lead them to stop broadcasting some 1.0
multicast streams altogether. We therefore find that, by extending our
multicast licensing approach to non-simulcast 1.0 multicast streams, we
will not only encourage Next Gen TV broadcasters to preserve the
multicast streams viewers watch today, but also facilitate their
transition to 3.0 by making it easier for them to continue serving
their existing viewers even while 3.0 spectrum is limited. While we
expect that capacity constraints will be the primary reason for this
relief, given the strong public interest in facilitating broadcasters'
preservation of the best possible 1.0 service during the transition
period, and our limit on the amount of host capacity that may be
licensed, we see no reason to require broadcasters to demonstrate 3.0
capacity constraints in order to license 1.0 non-simulcast multicast
streams.\32\ Finally, we again emphasize that hosting arrangements for
multicast streams are temporary ones made to facilitate the transition
to 3.0 service.
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\27\ BitPath asked that we permit the licensing of multicast
streams on different hosts with identical programming when necessary
in order to preserve service. We do not adopt a specific rule
addressing such streams, but we note that all guest multicast
streams must serve the originating station's community of license,
and each of a station's hosted streams will be considered when
determining its compliance with the limitations on host capacity. In
order to provide flexibility to preserve existing multicast streams,
we also decline to restrict the number of 1.0 hosts with which a
station may partner, so long as it does not exceed its licensed
capacity and complies with the coverage requirements discussed below
for each of its streams.
\28\ Non-simulcast 1.0 multicast streams licensed pursuant to
our rules are not required to comply with 47 CFR 73.3801(b),
73.6029(b), and 74.782(b) (the ``Simulcasting Requirement'').
\29\ Broadcaster commenters uniformly and enthusiastically
support the licensing of non-simulcast streams and, to the extent
the Commission adopts any limits, they support NAB's proposed host
capacity limit.
\30\ MVPDs do not oppose the licensing of non-simulcast streams,
provided there are reasonable limits on the number and types of
multicast streams a Next Gen TV station may license on a host
station.
\31\ Section 399B of the Communications Act provides that ``[n]o
public broadcast station may make its facilities available to any
person for the broadcasting of any advertisement.'' 47 U.S.C.
399B(b)(2). Under a private arrangement, an NCE station would be
prohibited from hosting the simulcast programming of a commercial
station because the stream would be aired on the ``facilities'' of
the NCE licensee. However, under a licensed approach, the
``facilities'' are no longer exclusively the facilities of the NCE
station, as each station has a right to use the facilities pursuant
to its separate license and contractual rights. A commercial stream
aired on a partner NCE station will be separately licensed and
authorized to use the host's channel, therefore permitting an NCE
station to serve as a host to a commercial stream.
\32\ We thus reject NCTA's suggestion that we require a
broadcaster to demonstrate 3.0 capacity constraints as a
prerequisite to receiving authorization for non-simulcast 1.0
streams. We find that concerns regarding the need for limits on any
one broadcaster's use of spectrum will be adequately addressed by
the capacity constraints that we adopt below.
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C. Non-Simulcast 3.0 Multicast Streams
17. Our current rules do not provide for the licensing of 3.0 non-
simulcast multicast streams aired as guest streams on a 3.0 host
station.\33\ In the Next Gen TV Multicast Licensing FNPRM, we
specifically declined to seek comment on NAB's proposal asking us to
allow a Next Gen TV station (that continues to broadcast in 1.0 on its
own channel) to seek modification of its license to include 3.0
multicast (guest) streams aired on a 3.0 host station, even if it is
not simulcasting those multicast streams in a 1.0 format. Thus, we do
not address the comments we nevertheless received on this issue. We
note, however, that under our existing rules, a Next Gen TV station may
air 3.0 non-simulcast multicast streams on its own 3.0 facility. This
is because, under our existing rules, a Next Gen TV broadcaster does
not have to simulcast its multicast streams in 1.0 and does not need
separate license authorization to air its own multicast streams on its
own 3.0 facility.\34\
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\33\ Because at this time our rules do not allow Next Gen TV
stations to license host capacity for 3.0 non-simulcast multicast
streams, we do not address the issue of a 3.0 host capacity limit.
\34\ Consequently, a Next Gen TV station that converts its own
facility to 3.0 could air a ``demo'' multicast stream without
simulcasting such stream in 1.0.
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D. Limits on Licensing of Host Capacity
18. In response to our request for comment on ensuring that a Next
Gen TV broadcaster does not use the interim flexibility proposed in
this FNPRM to aggregate capacity beyond that which is
[[Page 45353]]
legally permissible today, we find that it is appropriate to limit a
Next Gen TV station's 1.0 host capacity to that which it could deploy
on its own 1.0 channel and adopt a modified version of NAB's proposal
in order to effectuate this limit.\35\ Specifically, a Next Gen TV
station that has converted its own facility to 3.0 must not license
more capacity on partner host stations, in the aggregate, than the
station could use if it were still operating its own facility in 1.0. A
Next Gen TV station must demonstrate compliance with this rule in its
license application and may do so by either: (1) showing that it is
seeking hosting only for streams it was broadcasting on its own 1.0
facility prior to its transition to 3.0; or (2) by providing an example
of another 1.0 station that is carrying or has carried the same or a
similar programming lineup to that which it seeks to provide on host
stations and at the same resolutions. To enable the Commission and
other interested parties to evaluate compliance with the host capacity
limit, a Next Gen TV station applicant will be required to provide
information regarding each of its licensed streams. Stations may also
be asked to submit additional information to the Commission upon
request.
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\35\ We also sought comment on a specific NAB proposal to
address this concern, limiting the scope of hosting arrangements by
requiring that ``[i]n arranging for the hosting of its programming,
no individual broadcaster shall partner with other stations to host,
in the aggregate, more programming than such station could broadcast
on its own facilities based on the then-current state of the art for
television broadcasting as evidenced by other television stations
then operating with the same standard.'' Even at the time of
proposing this language, however, NAB noted that it did not consider
such a limitation necessary. We note that one 6 MHz channel provides
a station with approximately 19.4 Mbps of capacity. Although the
FNPRM referred to ``spectrum aggregation,'' we agree with NAB that
this concern is more accurately described as capacity aggregation
and that this concept, and our implementation of NAB's proposal,
also encompasses many of the concerns discussed in the FNPRM about
``programming aggregation.'' As noted in the Ownership Issues
section, some concerns about ``programming aggregation'' are better
addressed in the quadrennial proceeding.
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19. We agree with commenters asserting that a reasonable limit on
the amount of host capacity that may be licensed by an individual Next
Gen TV (guest) station is appropriate. As these commenters suggest,
this is needed in order to ensure that no station abuses the
flexibility permitted by 1.0 non-simulcast multicasting to aggregate
capacity beyond that which is physically possible or legally
permissible when broadcasting from a single facility. We believe this
is necessary because it is not our intention to upend the entire
structure of broadcast television licenses for this transition period,
and we are conscious of the consumer confusion that may be
inadvertently caused by the coverage changes inherent in a multiple-
host approach. We see no reason, as a matter of spectrum policy, to
permit stations to use more capacity on hosts than they could on their
own stations. Indeed, no commenter argues that a single station should
have the ability to aggregate host capacity beyond that which it could
use if it were still operating on its own facility in 1.0.\36\
Broadcaster commenters merely argue that the likelihood of such
aggregation is small, asserting that there will be less total 1.0
capacity in a given market when a station transitions and such capacity
will only further diminish as more stations in the market transition.
We believe it is appropriate for our rules to ensure this eventuality
does not occur even if the likelihood is low, especially in light of
the fact that reduced available capacity would only amplify any
concerns about harms to competition and diversity of viewpoints if one
station were to occupy more capacity through hosts than its license
would otherwise permit. Accordingly, it is our intention that the
capacity limitation operate hand in hand with our rule permitting
licensing of 1.0 non-simulcast multicast streams.
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\36\ We also reject APTS' proposal to exempt NCE stations from
the host capacity limit. We find our rationale for establishing the
host capacity limit applies to both commercial and NCE stations.
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20. We agree with NAB that any capacity restriction we adopt should
limit stations to the capacity they could have used if they were still
broadcasting in 1.0 on their own facilities, without restricting their
ability to add or change programming streams during the transition.
Accordingly, we decline to adopt alternative proposals to the extent
they seek to address issues beyond that scope.\37\ To this end, we
adopt the substance of NAB's proposal, modifying it only to require
that stations demonstrate compliance by submitting a limited amount of
specific information at the time of application, rather than in
response to complaints. In the Next Gen TV Multicast Licensing FNPRM,
the Commission expressed concern about the specific language of NAB's
proposal, stating that ``an effective rule . . . would need to be
objective, simple for stakeholders to understand and apply, and
amenable to enforcement.'' MVPD commenters agree with this concern and
suggest an objective capacity limit based on a set number of streams,
whether a generally applicable limit or one based on the number of
streams the station provided prior to its transition to 3.0. Upon
review of the record, we are persuaded that such alternatives would be
overly restrictive and that the best metric will be the number and
resolution of streams actually airing (or that previously actually
aired) on specific 1.0 facilities.
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\37\ For example, while our rule addresses NCTA's call for
``meaningful and enforceable limits on the hosting of multicast
streams,'' we believe the group's concerns about the impact on
multicast signal carriage are better resolved in the context of
private retransmission consent negotiations or, if appropriate, the
carriage complaint process. Also, Edge Networks (Evoca) commented
``[t]he Commission should address anticompetitive practices of
broadcasters who use their control of content to restrict new market
entry and video competition.'' Evoca has clarified, however, that
its recommendations regarding retransmission consent in its initial
comments were not intended to be proposals for rulemaking.
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21. We agree with ATVA that ensuring compliance with capacity
limits associated with a single 1.0 station does not require the
Commission to engage in a technical bit-by-bit analysis of a
broadcaster's service. Rather, we conclude that reviewing basic
information about each proposed stream (particularly its network
affiliation and resolution) and considering an appropriate capacity
comparison (either the prior capacity of the station itself or the
reference point of another 1.0 station with a similar lineup at the
same resolutions and on the same type of facility (individual or
shared)) will suffice to enable the Commission to ensure a particular
broadcaster is not expanding its capacity beyond that which it could
use pursuant to the Commission's traditional 1.0 licensing regime.\38\
We find that it is reasonable to require Next Gen TV station applicants
to provide this information, which is largely consistent with the
information currently required in the Legal STA process, and therefore
reject NAB's proposal that Next Gen TV station applicants provide only
a certification without further information at the time of application.
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\38\ This approach also captures the ``state of the art,'' as
contemplated by NAB's proposed rule language, by allowing stations
to compare themselves to the most advanced peer stations both at the
outset of 3.0 service and whenever they make changes to their
lineup.
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22. We reject NAB's contention that it would be more appropriate
for the burden of discovering excessive use of capacity to be on MVPDs
and that comparison information should be provided by stations only in
response to complaints.\39\ As justification for this approach, NAB
asserts that providing
[[Page 45354]]
the capacity information in the absence of a complaint would be a waste
of both Commission and broadcaster resources. We disagree. This
capacity information--asking whether the proposed lineup could fit
within a 1.0 channel by comparing it to a similar one that has actually
aired--is necessary to make an informed objection to a proposed use of
host capacity. Further, we fail to see how providing this information
requires materially more resources than NAB's certification proposal.
Any ex ante certification of the type proposed by NAB would require the
applicant to certify that it has a reasonable belief that all of the
proposed streams could be simultaneously broadcast by the station on
its own 1.0 facility if it had one. This reasonable belief presumably
would need to be based upon the collection of the same information we
are asking the broadcaster to provide. And we are persuaded by NAB that
broadcasters will necessarily base such a belief on the actual
experience of specific stations, rather than on any sort of detailed
technical analysis. Therefore, requiring that stations preemptively
share the same public information that would be the basis of their
certification--that is, whether the same or a similar lineup has ever
previously aired--is reasonable and would not ``waste'' broadcaster
resources. Furthermore, we believe this requirement provides greater
certainty to broadcasters than a complaint process, because the showing
submitted will demonstrate compliance with the rule.\40\ Moreover, as
discussed below, providing the required information about a station's
operations during the transition period will provide much needed
transparency for the public and stakeholders.
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\39\ Because we do not rely on claims of harm to cable companies
in our decision, we do not address NAB's objections to those claims.
\40\ We note that, while NAB identifies these as ``examples'' of
ways to demonstrate compliance, neither they nor any other commenter
have proposed any other way for a station to demonstrate ``that it
could successfully transmit all hosted programming on a single ATSC
1.0 facility.''
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E. Use of Multicast Streams To Minimize 1.0 Primary Stream Service Loss
23. We adopt rules providing that, in certain circumstances, a Next
Gen TV station may simulcast its primary stream programming both on its
primary stream host and on a multicast stream carried by a different
partner station in order to minimize the impact of 1.0 primary service
loss that would result if an originating station were only able to air
its primary stream on a single host.\41\ We also adopt our tentative
conclusion that such streams will be considered a ``simulcast multicast
stream'' and count toward the host capacity limit established herein.
Accordingly, we adopt our tentative conclusion that a multicast stream
that is a second (or additional) simulcast of a primary stream must be
``substantially similar'' to the 3.0 primary stream.\42\ Broadcasters
largely support this proposal,\43\ and no commenter objected to it.\44\
We agree with broadcasters that preserving 1.0 primary service is
critically important during the transition period and that this relief
supports that goal.
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\41\ While the Bureau will consider proposals that would use
more than one multicast stream (airing primary programming), such
proposals will require the public interest showing under the non-
expedited processing standard. We expect this situation will arise
only when such streams are aired on low-power TV 1.0 hosts.
\42\ Indeed, by definition as a second (or additional) simulcast
of a 3.0 primary stream, we expect this stream will be identical to
the simulcast of the primary stream (which, by rule, must be
substantially similar to the 3.0 primary stream). See 47 CFR
73.3801(b)(1), 73.6029(b)(1), 74.782(b)(1). In addition, we adopt
our tentative conclusion that this multicast stream, like all hosted
streams, will count toward the host capacity limit established in
this Order.
\43\ We note that ONE Media and ATBA contend that this proposal
does not go far enough and that we should afford such an application
expedited processing. We reject this proposal. Considering whether
the use of a multicast stream to supplement the primary stream is
appropriate requires consideration on a case-by-case basis. The non-
expedited process allows the Bureau to collect additional
information that will be used to ensure the proposed use is in the
public interest.
\44\ Although the WNUV STA called this stream a ``supplemental
primary ATSC 1.0 simulcast stream,'' we decline to use this term and
emphasize that, contrary to the argument advanced by ONE Media, such
a stream is a multicast stream and not an additional primary stream.
As a multicast stream, this signal has no carriage rights.
Furthermore, as noted above, any service provided by such a
multicast stream beyond the station's NLSC is incidental and may not
be considered for securing any rights or benefits, now or in the
future. For example, we will reject a request by a broadcaster to
modify its market to add communities based on the service of this
multicast stream.
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24. We therefore affirm the earlier Bureau decision approving this
method of mitigating 1.0 service loss and bring such streams within the
transition licensing regime discussed herein without the need for case-
specific STAs.\45\ We expect this situation will arise only when an
applicant intends to broadcast in 3.0 on its own channel and is unable
to find a partner 1.0 host that could, on its own, provide coverage of
its primary stream to 95 percent of the applicant's 1.0 service area.
Applications seeking to use a multicast stream to supplement the
service provided by their primary stream will be considered by the
Media Bureau under the process for non-expedited applications.\46\
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\45\ As noted in that decision, applicants whose applications
are reviewed under the non-expedited processing standard are
required to minimize the impact of the expected service loss, but
the Commission did not require a specific method for doing so.
\46\ In the Next Gen TV Report and Order, the Commission
established a presumption that it would favor grant of an
application demonstrating that the station would provide ATSC 1.0
simulcast service to at least 95 percent of the predicted population
within the station's original NLSC and afford ``expedited
processing'' to such applications. A Next Gen TV applicant whose
ATSC 1.0 simulcast signal will not satisfy this 95 percent threshold
(``non-expedited applicant'') will be considered on a case-by-case
basis and must provide the following information: (1) whether there
is another possible simulcast partner(s) in the market that would
result in less 1.0 service loss to existing viewers and, if so, why
the Next Gen TV broadcaster chose to partner with a station creating
a larger service loss; (2) what steps, if any, the station plans to
take to minimize the impact of the 1.0 service loss (e.g., providing
ATSC 3.0 dongles, set-top boxes, or gateway devices to viewers in
the loss area); and (3) the public interest benefits of the
simulcast arrangement and a showing of why the station believes the
benefit(s) of granting the application outweigh the harm(s).
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25. Contrary to our tentative conclusion in the Next Gen TV
Multicast Licensing FNPRM, we do not limit this relief only to NCE
stations or commercial stations airing multicast streams on NCE partner
hosts.\47\ The Next Gen TV Multicast Licensing FNPRM asked whether this
approach would be an acceptable method for mitigating ATSC 1.0 service
loss for any other types or groups of applicants. No commenter opposed
extending this relief to other types or groups of applicants and we are
persuaded by broadcasters' comments that other similarly situated
stations may be able to show that their use of multicast streams to
minimize service loss of the primary 1.0 stream is in the public
interest.\48\ We therefore allow any Next Gen TV station to apply for
this relief under the non-expedited process, but emphasize that all
applicants must demonstrate why this relief is in the public interest
and outweighs any potential harms. As discussed in the Next Gen TV
Multicast Licensing FNPRM, we recognize that each programming stream
devoted to
[[Page 45355]]
simulcasting a primary stream is one fewer that could be devoted to
multicast programming, potentially reducing the diversity of
programming available to viewers in order to ensure the widest
availability of the most popular programming. We also note that a
station airing its primary stream programming on two hosts could be
reaching many viewers previously outside its 1.0 footprint. Thus, the
Bureau must consider whether the benefits of a given proposal outweigh
any harms, including any impacts on localism, diversity of programming
offerings, and/or viewer confusion. Finally, we emphasize that service
temporarily provided by a multicast stream that is used as a second
simulcast of a primary stream will not give rise to any rights for the
broadcaster or impose any obligations on MVPDs, and may not be
considered for purposes of securing any rights or benefits, now or in
the future.
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\47\ In proposing this approach, we supported the Bureau's prior
decision, which found that ``permitting NCE stations to participate
in the ATSC 3.0 rollout arrangements in this manner is critical to
the success of the transition,'' in large part because NCE stations
make up over 20% of all full power broadcasters.
\48\ Pearl contends that ``this [relief] is a particularly good
solution for various scenarios, such as: small markets that are
spectrum constrained; geographically large markets with a small
population, like the Butte-Bozeman DMA in Montana; and markets where
some broadcasters rely on a single full power station to serve the
market and other broadcasters have multiple stations serving the
same market, such as La Crosse-Eau Claire in Wisconsin or
Birmingham, Alabama.''
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F. Ownership Issues
26. Consistent with our decision with regard to hosted primary
streams of NextGen TV stations, hosting multicast streams on a
temporary host station's facility will not result in attribution under
our broadcast ownership rules or for any other requirements related to
television stations attribution (e.g., filing ownership reports). In
the Next Gen TV Multicast Licensing FNPRM, we asked whether the
temporary nature of the exemption and our desire to minimize viewer
disruption while facilitating the 3.0 transition made the hosting of
multicast streams similar enough to the hosting of primary streams to
warrant the same approach. We are persuaded by the record that they do.
Broadcaster commenters support this approach, maintaining that the
hosting of multicast streams would further the same objectives as
primary stream hosting. Consistent with the need articulated by
broadcasters, we emphasize that the new flexibility we grant herein is
intended to serve the purpose of minimizing viewer disruption, and we
find that the clear benefits of such an approach for viewers outweigh
any potential for abuse under our ownership rules that some commenters
have raised. This decision does not change the Commission's broadcast
ownership rules in any substantive way and certainly does not alter the
number of stations a broadcaster can own in a particular market. As
discussed in the Next Gen TV Multicast Licensing FNPRM, ATVA and others
have raised concerns in the 2018 Quadrennial Review proceeding about
the practical impact of the ownership rules in light of the growing
practice of placing Big-four network programming on multicast streams.
We find that those concerns are best addressed in the Quadrennial
Review context, not least because any decision made in that proceeding
with respect to Big-four network affiliations will apply to all
licensed multicast streams, hosted or otherwise.
G. Same-Service (or ``Lateral'') Hosting
27. We adopt our tentative conclusion declining at this time to
license same service (or ``lateral'') hosting arrangements, though we
are open to considering such arrangements in limited circumstances.
Same-service (or ``lateral'') 1.0 hosting refers to a situation in
which a Next Gen TV station still operating its own facility in 1.0 and
serving as a 1.0 host for another Next Gen TV station that converted
its facility to 3.0 seeks to relocate one or more of its own multicast
streams to another 1.0 host station. We are not convinced that a
general rule as proposed that would permit this practice is necessary
to minimize viewer disruption during the transition. Even advocates for
a rule concede that the hypothetical problems it could resolve would
occur only rarely. Given the lack of any demonstrated need to allow
such arrangements in all markets, we refrain from adopting a general
rule at this time. Nonetheless, as discussed below, we will entertain
requests for special temporary authority to permit 1.0 same-service
hosting and may revisit this decision once we have more experience with
situations in which such flexibility may be necessary to enable a
market to transition.\49\
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\49\ We recognize that most broadcasters strongly support
lateral hosting, seeking maximum flexibility under our licensing
regime.
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28. BitPath and other commenters contemplate scenarios in which
multiple Next Gen TV stations across a market would shift streams from
station to station in order to facilitate their move toward 3.0. For
example, broadcasters in the New York DMA (the New York City market)
have argued that multiple stations engaging in same-service hosting is
a business necessity in order to maximize the number of stations
willing to transition simultaneously. On the current record, however,
there is no evidence that same-service hosting is technically necessary
to make any market's transition possible. Indeed, there has only been
one instance in which a Next Gen TV broadcaster sought Commission
approval to keep its facility in 1.0 while shifting some 1.0
programming to a host. That station and that market, however, were
ultimately able to begin the transition without any ``lateral''
hosting, and the station also retained enough capacity that it has
since added yet another 1.0 stream to its lineup.
29. Furthermore, there is potential for abuse in a lateral hosting
scenario, particularly given the continuing uncertainty around the
ultimate duration of the transition. For instance, preventing the
aggregation of excess capacity in such a scenario would require a more
complex capacity limitation rule than is supported by our record. This
is particularly true given the need to consider not just programming
but any ancillary and supplementary services being provided over a
station's own facility. In the absence of such protections, a station
relying on same-service hosts could potentially use significantly more
capacity than is permitted under its license, even while complying with
the capacity limit rule adopted today. The record simply does not
demonstrate that creating such potential for confusion and abuse is
justified by any countervailing need.
30. We will, however, consider requests for special temporary
authority in those rare circumstances in which relief may be necessary
to ensure that a market can transition effectively. We expect that
addressing any potential issues using this process will allow us to
monitor the changing state of the market as the transition moves
forward and to collect more information about any situations that arise
in which there is a technical need for this type of ``lateral''
flexibility. Indeed, the STA process provided valuable, real-world
information that helped inform our decisions in this item. Finally,
broadcasters have argued in this proceeding that the appropriate
measure of how much programming a 1.0 station is capable of airing is
whether any 1.0 station is airing or has previously aired the same or a
similar programming lineup at the same resolutions. We agree and we
direct Media Bureau staff to review and process any potential STA
requests (and the inherent potential of any such requests to expand
broadcasters' capacity as described above) in light of this
``historical'' approach, which we have adopted elsewhere in this Order
to limit capacity in the multicast hosting context.\50\
[[Page 45356]]
Furthermore, as noted above, same-service hosting is limited to a host
station's multicast stream (i.e., a host station's own primary stream
is not eligible for lateral hosting). And while the Media Bureau will
have flexibility to review the particular circumstances of each case,
we expect that staff will consider the potential impact on over-the-air
availability of programming that has significant viewership (e.g., the
stream is ranked in the top 4 in the market or would cause viewers to
lose their only source of noncommercial or major network programming)
or specifically provides children's programming in the station's
service area.
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\50\ Such requests must clearly identify any programming that
would be discontinued in the absence of an STA and explain why there
is no reasonable alternative to the requested reliance on a same-
service host and how viewer impacts will be minimized (e.g., is the
same stream available to viewers in any loss area from another
station in the same or adjacent market). STAs will be granted for a
period of 180 days and must be subsequently renewed.
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H. Rules Applicable to Multicast Streams Aired on a Host Station
31. With respect to the other ATSC 3.0 transition rules, except as
detailed in this Order, we will apply the same rules to simulcast and
non-simulcast licensed multicast streams as we currently apply to
primary simulcast streams, consistent with our tentative
conclusions.\51\ These rules are intended to protect consumers from
service disruption, especially the loss of access to the 1.0 television
programming they currently watch, without restricting broadcasters'
ability to choose to participate in the voluntary, market-driven
transition to ATSC 3.0. We believe these proposals best balance the
goal of preserving maximum availability of multicast streams with the
reality that broadcasters could simply decline to air multicast streams
if our rules are too burdensome.
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\51\ The rules at issue are those found in Sec. Sec. 73.3801,
73.6029, and 74.782 of the Commission's rules (each entitled
``Television Simulcasting''). These include simulcast arrangements
and agreements (47 CFR 73.3801(a) and (e), 73.6029(a) and (e),
74.782(a) and (f)); the simulcasting requirement (47 CFR 73.3801(b),
73.6029(b), 74.782(b)); contour, DMA, and community of license
coverage requirements (47 CFR 73.3801(d) and (f)(5)-(6), 73.6029(d)
and (f)(5)-(6), 74.782(e) and (g)(5)-(6)); MVPD notice requirements
(47 CFR 73.3801(h), 73.6029(h), 74.782(i)); consumer education
provisions (47 CFR 73.3801(g), 73.6029(g), 74.782(h)); and licensing
procedures (47 CFR 73.3801(f)(2), 73.6029(f)(2), 74.782(g)(2)). No
commenters specifically addressed these requirements.
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32. Coverage rules. As proposed in the Next Gen TV Multicast
Licensing FNPRM, we will apply the DMA and community of license
coverage requirements to all multicast streams but will not consider
those streams when determining whether a station qualifies for
expedited processing. Thus, 1.0 multicast streams aired on a host
channel must continue to cover the guest station's entire community of
license and the host station must be assigned to the same DMA as the
originating station.\52\ For 3.0 multicast streams aired on a host
channel, as with 3.0 primary streams aired on a host channel, only the
DMA requirement applies.\53\ When determining whether a station seeking
to transition is eligible for expedited processing, however, we will
continue to ask only whether the primary stream will remain available
in 1.0 to at least 95% of a station's current OTA audience.\54\
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\52\ As proposed in the Next Gen TV Multicast Licensing FNPRM
and noted below in the paragraphs discussing updates to Form 2100,
Next Gen TV applications must note the predicted percentage of
population within the station's NLSC that will be served by each
multicast stream host.
\53\ No commenter specifically addressed this proposal.
\54\ In the Next Gen TV Report and Order, the Commission
established a presumption that it would favor grant of an
application demonstrating that the station would provide ATSC 1.0
simulcast service to at least 95 percent of the predicted population
within the station's original NLSC and afford ``expedited
processing'' to such applications.
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33. Although commenters generally do not oppose this approach, some
commenters support variations to it. A small number of broadcasters
suggest that the rule should require only a host in the same DMA
without a requirement regarding the community of license. They express
concern that it will be challenging in the future for stations to find
host partners that can fully cover their community of license. ATVA, on
the other hand, contends that no station should receive expedited
processing unless all of its multicast streams meet the 95% coverage
threshold or if the station pledges to deliver signals to MVPDs. We
reject these proposals. With respect to both of these concerns, we
emphasize that retaining a station's 1.0 service to its community of
license remains our priority under current marketplace conditions. We
will review each application--including any unique characteristics of
the market involved--as it arises.
34. Finally, as proposed in the Next Gen TV Multicast Licensing
FNPRM, for children's programming on a multicast stream to count toward
the originating station's children's television Core Programming
requirement, the multicast stream must either be carried on the same
host as the originating station's primary stream or on a host that
serves at least 95% of the predicted population served by the
applicant's pre-transition 1.0 signal. Commenters do not oppose this
proposal, although the Broadcasting Alliance proposed that we combine
hosts of multiple ``copies'' of a multicast stream to determine whether
that stream is reaching 95% of the relevant population. While we do not
bar stations from airing identical content on multiple hosted multicast
streams, we decline to adopt this alternative on the grounds that it
would incentivize inefficient use of limited 1.0 capacity.
35. Licensing. As proposed in the Next Gen TV Multicast Licensing
FNPRM, we will apply our licensing process for primary simulcast
streams to guest multicast streams aired on a host station.\55\ No
commenter opposes this proposal. Thus, upon grant of an application,
each of an originating station's multicast streams aired as a guest
stream on a host will be licensed as an additional temporary channel of
the originating broadcaster. We also adopt our unopposed tentative
conclusion that commonly owned stations are not required to enter into
written agreements for the hosting of either primary or multicast
streams, consistent with the process the Bureau uses for handling the
hosting of primary streams on commonly owned stations.
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\55\ Under these rules, a Next Gen TV station could seek to
obtain separate authorizations for each host station used to air any
programming stream and would no longer be limited to the two
authorizations contemplated in the Next Gen TV First Report and
Order.
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36. Form 2100. We adopt the Next Gen TV Multicast Licensing FNPRM's
proposal to modify our Next Gen TV license application form (FCC Form
2100) to accommodate multicast licensing by collecting information
similar to that already collected in the STA process.\56\ Broadcasters
generally support a requirement to file the same information they
currently provide when seeking to transition, though other commenters
suggest the filing should be more extensive. NAB asserts that licensees
should not have to file any information at all about multicast streams.
We reject NAB's argument. We note that our rules do not prohibit the
use of private contractual arrangements for partner stations to air
their multicast streams. For regulatory compliance purposes, such
streams would be considered multicast streams of the host partner
station, not the originator station. To the extent stations seek
instead to modify their license to include multicast streams hosted by
partner stations, both the Commission and the public need visibility
into the basic terms of that hosting relationship. Such transparency
will ensure compliance with our rules, particularly compliance with the
host capacity limit (see section III.D, above.). We therefore
[[Page 45357]]
will require certain additional information as an addendum to Form 2100
if stations seek to include hosted multicast streams within their
license. We also clarify and slightly modify the requirements of our
rules governing Form 2100 to reflect the possibility of reliance on
multiple hosts.
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\56\ We direct the Media Bureau to revise Form 2100 as needed to
implement these changes, and to process applications filed using
Form 2100.
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37. Specifically, applicants must prepare an exhibit identifying
each proposed hosted stream and provide the following information about
each stream, as broadcast:
<bullet> the host station;
<bullet> channel number (RF and virtual);
<bullet> network affiliation (or type of programming if
unaffiliated);
<bullet> resolution (e.g., 1080i, 720p, 480p, or 480i);
<bullet> the predicted percentage of population within the noise
limited service contour served by the station's original ATSC 1.0
signal that will be served by the host, with a contour overlay map
identifying areas of service loss and, in the case of 1.0 streams,
coverage of the originating station's community of license; and
<bullet> whether the stream will be simulcast, and if so, the
``paired'' stream in the other service.
Finally, the exhibit must either state that the applicant will be
airing the same programming that it is airing in 1.0 at the time of the
application or identify the station that has aired or is airing the
same or a similar programming lineup at the same resolutions on the
same type of facility (individual or shared), as well as that station's
lineup (with resolutions). This exhibit must be placed on the
applicant's public website or in the applicant's online public
inspection file if the station does not have a dedicated website,\57\
with a link provided in the application. This information is consistent
both with that currently collected in STA applications and the approach
identified in the Next Gen TV Multicast Licensing FNPRM.\58\ As with
broadcast licenses generally, modifications to this license application
or its accompanying exhibit (with respect to the primary or multicast
streams) must be preceded by the filing and approval of a new
application. Changes to the affiliation or content of a stream, or the
elimination of a stream, however, do not implicate the concerns raised
in this proceeding if they would not result in the use of additional
capacity and if information about the change is easily available to the
public. Therefore, in order to streamline this process for both
broadcasters and the Commission, such changes may be implemented
without prior Commission approval. They need only be reflected in a
timely update to the exhibit that the applicant makes available on its
public website or in the applicant's online public inspection file and
in an email notice to the Chief of the Media Bureau's Video Division.
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\57\ See <a href="https://publicfiles.fcc.gov/">https://publicfiles.fcc.gov/</a>. If a station has neither
a public website nor an online public inspection file, it will be
considered in compliance with this requirement if it publishes the
exhibit in a local newspaper identified in its application. Any
changes to the exhibit will require publication of the revised
exhibit.
\58\ While the Next Gen TV Multicast Licensing FNPRM did not
specifically mention identification of the ``pair'' of each
simulcast stream (that is, the specific stream in the other service
that is carrying substantially similar programming), we believe the
need for this information logically arises from the question about
whether a stream will be simulcast in situations where there is more
than one simulcast stream.
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38. Timing. As proposed in the Next Gen TV Multicast Licensing
FNPRM, the rules adopted in this Order will apply until and unless the
Commission eliminates the mandatory local simulcasting requirement.
Commenters generally support this approach, which will preserve
existing 1.0 viewership while giving broadcasters the flexibility to
transition to 3.0. MVPD commenters support the proposed timing with
respect to simulcast multicast streams, but propose that the rule
permitting non-simulcast 1.0 multicast streams should sunset after five
years. Broadcasters oppose this proposal, arguing it is contrary to the
public interest. We agree that establishing a prescribed sunset for the
non-simulcast multicast licensing rules adopted in this Order could
lead to a sudden reduction in the availability of 1.0 programming,
harming consumers. We therefore decline to adopt a sunset of the non-
simulcast multicast and will continue to encourage broadcasters to
maximize their 1.0 service throughout the transition in order to
minimize the disruption to consumers.
I. Substantially Similar Rule
39. Based on the existing record, we retain the substantially
similar rule at this time and extend the sunset date to July 17,
2027.\59\ In the Sunsets FNRPM, we sought comment on whether we should
retain the substantially similar rule or permit it to sunset in July,
2023. After consideration of the state of the transition reflected in
the record of this proceeding, we find this rule continues to be
necessary at this time for the same reasons it was adopted, to protect
consumers by ensuring that OTA viewers who rely on 1.0 are able to
continue watching the same programming they watch today, as well as any
new programming offerings on a broadcaster's primary channel that can
be reasonably provided in 1.0 format.\60\ Based on the current record,
we find that broadcasters' market incentives alone are insufficient to
protect OTA viewers from potential loss of 1.0 service. Furthermore, we
find that there has not yet been a sufficient shift in the marketplace
that would justify elimination or modification of the substantially
similar rule. Moreover, we see no evidence on the record that the
substantially similar rule is currently impeding, or is likely in the
near future to impede, the provision of innovative 3.0 features and
content. The rule as it stands affords significant flexibility for
broadcasters to innovate and experiment with new programming features
using 3.0 technology because it does not require broadcasters to
duplicate enhanced content or features that cannot reasonably be
provided in the 1.0 format. Furthermore, broadcasters provide no reason
why programming aired on the 3.0 primary stream that can reasonably be
provided in 1.0 format should not be provided in such format. On the
other hand, eliminating the substantially similar rule at this time, in
light of the current state of the transition, poses a risk of harm to
OTA viewers who rely on 1.0, particularly vulnerable consumers, who
without the rule could be forced to either purchase new 3.0 equipment
or lose access to stations' primary programming.
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\59\ We note that the requirement to simulcast in 1.0 is
intended to be temporary and will be eliminated when the transition
to 3.0 is complete.
\60\ The Commission has explained that it will not apply the
substantially similar rule to certain enhanced capabilities that
cannot reasonably be provided in ATSC 1.0 format. These capabilities
include ``hyper-localized'' content (e.g., geo-targeted weather,
targeted emergency alerts, and hyper-local news), programming
features or improvements created for the 3.0 service (e.g.,
emergency alert ``wake up'' ability and interactive programming
features), enhanced formats made possible by 3.0 technology (e.g.,
4K or HDR), and any personalization of programming performed by the
viewer and at the viewer's discretion. While some of these
capabilities may be theoretically possible within the ATSC 1.0
framework, they are not currently part of the ATSC 1.0 standards,
are unlikely to be included in current consumer equipment, and as
such cannot reasonably be provided via ATSC 1.0.
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40. The purpose of the substantially similar rule is to give effect
to the underlying requirement to ``simulcast'' 3.0 programming in 1.0,
protecting 1.0 viewers from losing access to a Next Gen TV station's
programming when that station transitions its facility to 3.0. While
the underlying simulcast requirement that a Next Gen TV broadcaster
must continue to air a primary 1.0 signal (when deploying that signal
in 3.0) ensures 1.0 viewers
[[Page 45358]]
continue to receive one free OTA TV signal during the transition, the
substantially similar rule ensures that 1.0 viewers actually receive
the same primary programming as that aired on the 3.0 channel,
including new programming to the extent that such programming can
reasonably be provided in 1.0 format. Thus, these rules work in tandem
to ensure that viewers are protected during the transition period. As
the Commission explained in the 2017 First Next Gen TV Report and
Order, ``it is important not only to require that television
broadcasters continue to broadcast in the current ATSC 1.0 standard
while ATSC 3.0 is being deployed, but also that they continue to air in
ATSC 1.0 format the programming that viewers most want and expect to
receive. We seek to ensure that broadcasters air their most popular,
widely-viewed programming on their 1.0 simulcast channels so that
viewers are not forced to purchase 3.0 capable equipment simply to
continue to receive this programming rather than because they find the
ATSC 3.0 technology particularly attractive.''
41. The record of this proceeding does not provide a basis for us
to conclude that the substantially similar rule is no longer needed at
this time for the same purposes it was originally adopted. Without the
substantially similar rule, Next Gen TV broadcasters would be free to
air the most desirable programming, including popular existing
programming and new program offerings that could reasonably be provided
in 1.0 format, only on their 3.0 primary programming stream. This could
create two different tiers of free, OTA television service, which we
find would not be in the public interest.\61\ We agree with NCTA and
PK/OTI that this would ``plac[e] viewers at risk of losing access to
popular programming should they be unwilling or unable to pay for this
new [3.0] equipment.'' In particular, PL/OTI notes that lower-income
consumers could be especially vulnerable. Furthermore, at this stage of
the transition, we agree that many consumers may find there to be a
lack of affordable 3.0 TV equipment.\62\
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\61\ In recognition of the capacity constraints imposed by the
transition, the Commission has already given broadcasters
flexibility with respect to the resolution and coverage of 1.0
primary streams, and the availability of 1.0 multicast streams. In
contrast to these situations, 1.0 capacity constraints do not
prevent the provision of substantially similar programming,
particularly since Next Gen TV broadcasters are not required to
simulcast programming that cannot reasonably be aired in 1.0 format.
NAB contends the Commission's discussion of the potential
development of two tiers of programming ignores that ``[t]here
already are two tiers of programming service: pay and free.'' NAB
asserts that ``the Commission does not require other actors in the
communications marketplace, including those with which broadcasters
compete, to intentionally slow the pace of innovation when they
upgrade their technology to avoid creating different tiers of
service.'' NAB further states that ``[b]roadcasters are the only
entities the Commission regulates that are required to provide a
free service.'' We remind broadcasters that, as trustees of the
public airwaves, they are required by statute to serve the ``public
interest, convenience, and necessity.'' 47 U.S.C. 309(k)(1). Next
Gen TV stations may have only one primary programming stream, which
they are required to simulcast in 1.0. Finally, we note that
broadcasters are not the only regulatees with public interest
obligations. For example, cable operators and satellite carriers are
required to carry qualified broadcast stations that request
mandatory carriage. 47 U.S.C. 338, 534, 535. Also, satellite
carriers are required to reserve a percentage of channel capacity
for noncommercial educational or informational programming, 47
U.S.C. 335(b)(1); and cable operators are required to set aside
channel capacity for commercial use by unaffiliated video
programmers. 47 U.S.C. 532.
\62\ The record indicates, as of August 8, 2022, there were
approximately 120 models of television sets with 3.0 tuners
available in the United States from four manufacturers, but these
are mid- to high-end TV sets. According to Pearl, the lowest cost
3.0 TV set is available to consumers at retail for $549.00. The
lowest cost separate 3.0 receiver (gateway device) is available at
retail for $199.
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42. We find that broadcasters' market incentives alone cannot be
relied upon to ensure that all 1.0 viewers are able to continue to
access stations' primary programming without incurring significant
costs; this is particularly of concern with respect to vulnerable
consumers who are often slow to adopt new technology.\63\ We recognize
that broadcasters may have strong incentives to offer substantially
similar simulcast programming early in the transition. Broadcasters
contend that the market will protect all viewers, but as discussed
below these assertions often come with qualifications and caveats.
Broadcasters have willingly made significant investments in ATSC 3.0
technology, claiming it is necessary to remain competitive in the video
marketplace. Thus, while they do have incentives to provide their most
popular programming to all of their viewers, they also have incentives
to promote their ATSC 3.0 offerings. We recognize that broadcasters do
incur some costs by offering programming in both 1.0 and 3.0 to ensure
uninterrupted service to current OTA viewers. If the transition
progresses and the number of OTA viewers who rely on 1.0 declines,
broadcaster incentives to serve 1.0 viewers may weaken as the benefits
shrink relative to those costs. These weakened incentives would be a
direct result of the success of the transition as more and more OTA
viewers migrate to 3.0. Some broadcasters state that they have every
incentive to ``maximize'' viewership, but those arguments more
correctly appear to focus on maximizing profits, which will not
necessarily support the needs of OTA 1.0 viewers for the length of the
transition, particularly when that audience is split between two
different services.\64\ Broadcaster commenters acknowledge that even
these incentives hold only ``while the vast majority of viewers
continue to watch [1.0 signals].'' Given our decision herein to extend
the sunset date, the Commission can consider the status of incentives
based on the viewership at the time the requirement is set to expire.
The current record demonstrates that the substantially similar element
of the simulcast rule remains important to the transition at this time,
in order to provide certainty to those who continue to rely on 1.0.
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\63\ We note that if it were true that broadcasters have no
incentive to favor their 3.0 offerings, then our rule would simply
codify broadcasters' commitment and would not impede any
innovations.
\64\ There is no evidence in the record regarding the financial
impact on broadcasters of losing a declining number of 1.0 OTA
viewers, particularly older and lower income viewers who may not be
favored by advertisers. We also note that many broadcasters receive
significant revenue from retransmission consent fees, which would
not seem to be directly impacted by any loss in OTA viewership.
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43. Furthermore, most broadcasters are not committing to make new
programming available to all viewers. Indeed, many seem to indicate
that, if the substantially similar rule were eliminated, they would
provide new, 3.0-exclusive programming on their primary streams even if
such programming could reasonably be provided in 1.0 format.\65\ We
recognize that broadcasters are incurring costs by simulcasting and are
eager to complete the transition to pursue higher OTA viewership and
new revenue opportunities (via broadcast internet services) in the long
term. Thus, it is not surprising that broadcasters are already
contemplating ``trade-offs'' like the ``loss or degradation of 1.0
programming'' in the near future absent regulatory requirements to the
contrary. Given the above, and based on the current record, we are not
convinced market incentives alone will protect viewers who rely on 1.0.
Moreover, we remind broadcasters that, as trustees of the public
airwaves, they have a statutory obligation to serve the public
interest, even where market
[[Page 45359]]
incentives might temporarily push in a contrary direction.\66\
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\65\ As discussed below, to the extent such 3.0 content cannot
reasonably be provided in 1.0, broadcasters are free to provide such
programming only in 3.0 under the current rule. However, if such
content can reasonably be provided in 1.0, then it illustrates the
benefits of the current rule for viewers.
\66\ See 47 U.S.C. 309(a) (requiring the Commission to
determine, in the case of applications for licenses, ``whether the
public interest, convenience, and necessity will be served by
granting such application''); 47 U.S.C. 307(b) (requiring the
Commission to ``make such distribution of licenses, frequencies,
hours of operation, and of power among the several States and
communities as to provide a fair, efficient, and equitable
distribution of radio service to each of the same'').
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44. Furthermore, we find that the substantially similar rule is not
presently impeding innovation in broadcast programming. Broadcasters
assert that the rule is preventing them from innovating with 3.0
content and features. However, nothing in the current record supports
this.\67\ The current rule expressly allows broadcasters to innovate
and experiment with new, innovative Next Gen TV programming features,
including on their primary streams.\68\ Broadcasters identify only two
specific examples of potential innovation hampered by the rule, neither
of which withstands scrutiny. First, Pearl seems to suggest that the
rule prevents broadcasters from airing
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\67\ Next Gen TV broadcasters do not have to duplicate enhanced
content or features that cannot reasonably be provided in the 1.0
format. As stated above, this includes: ``hyper-localized'' content
(e.g., geo-targeted weather, targeted emergency alerts, and hyper-
local news), programming features or improvements created for the
3.0 service (e.g., emergency alert ``wake up'' ability and
interactive programming features), enhanced formats made possible by
3.0 technology (e.g., 4K or HDR), and any personalization of
programming performed by the viewer and at the viewer's discretion.
\68\ Stations broadcasting in 3.0 over their own facilities can
experiment with innovative 3.0 multicast streams that are not
subject to simulcast requirements.
``a `barker' or demo channel of 3.0 programming, showcasing the new
technology and demonstrating how viewers can unlock the many advanced
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features that ATSC 3.0 makes possible.''
We observe that a ``demo channel'' would presumably not be a station's
primary stream.\69\ As for a multicast stream, we reiterate our
clarification that any Next Gen TV station that converts its own
facility to 3.0 (including a 3.0 host) could air a ``demo'' multicast
stream, including content from its guest partners and other stations in
the market, without simulcasting such a stream in 1.0.\70\ Second,
Graham seems to suggest that the rule prevents broadcasters from airing
``alternate interactive programming or expanded local programming''
only in 3.0. It is unclear what Graham means by ``expanded local
programming'' as a unique 3.0 feature, but the substantially similar
rule expressly permits ``hyper-local news'' and ``interactive program
features.'' To the extent any ``expanded local programming'' provided
on a primary stream could reasonably be provided in 1.0 format, we
agree such programming must be simulcast in substantially similar
fashion in 1.0 format to comply with the rule. However, to the extent
programming can reasonably be provided in 1.0 format, we fail to see
how such programming could be considered innovative programming reliant
on the enhanced capabilities of 3.0 technology.
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\69\ We note, however, that ``demo'' programming aired on a
primary stream would likely be covered by the rule's exception for
``advertisements, promotions for upcoming programs, and programming
features that are based on the enhanced capabilities of ATSC 3.0.''
\70\ To the extent that 3.0 guests can show good cause why they
need to license a ``demo'' channel on a host (rather than having the
host air such demo channel), we will consider limited waiver
requests to license such non-simulcast 3.0 multicast guest streams.
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45. As a result of the current status of the transition reflected
in the record, we conclude that the sunset of the substantially similar
rule is unnecessary at this time. We note, however, that the pace of
the transition has necessarily been impacted by the recent pandemic. As
the transition continues and the consumer equipment market evolves, the
impact of eliminating or modifying the substantially similar
requirement may change. We therefore find that it would be appropriate
to revisit this issue in the future once the transition has had more
time to advance. Moreover, we anticipate that the Commission's recently
announced ``Future of TV'' public-private initiative, which will be led
by the National Association of Broadcasters (NAB), will provide
additional information on the pace and nature of the transition. These
insights, including any proposals discussed by partnership stakeholders
in this initiative, can help inform any potential changes to the
substantially similar requirement. Accordingly, we adopt a new sunset
date of July 17, 2027. Given the ongoing transition, we believe at this
time that this is an appropriate sunset period.\71\ This date will
allow for the opportunity of material changes to the transition such
that a subsequent review is warranted. Consistent with the previous
sunset, the Commission will initiate a review approximately one year
before the requirement is set to expire to seek comment on whether it
should be extended based on marketplace conditions at that time. This
balanced approach will provide 1.0 viewers with needed certainty while
giving broadcasters an additional opportunity to demonstrate that the
substantially similar requirement should be eliminated or modified.
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\71\ While, at present, a small number of converter devices that
work with the television sets in viewers' homes are available for
purchase, we expect more will come to market in coming years and
that the price should come down. For example, another 3.0-to-1.0
set-top-box has recently been announced by ADTH, which would be the
lowest priced converter device to date. According to ADTH, its
``NEXTGEN TV Box'' is scheduled to ship in July 2023. It costs
$119.99, but it is available for pre-order at the discounted price
of $79.99 for a limited time. The Commission can consider the
availability and cost of such devices in subsequent reviews of the
substantially similar rule.
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J. Requirement To Comply With the ATSC A/322 Standard
46. Based on the existing record, we retain the A/322 requirement
at this time and extend the sunset date to July 17, 2027. In the
Sunsets FNPRM, we sought comment on whether we should retain the
requirement that Next Gen TV broadcasters' primary video programming
stream must comply with the ATSC A/322 standard and, if so, for how
long. In response to the record, we find the A/322 requirement remains
necessary to protect consumers and other stakeholders. We further find
that the rule does not presently impede broadcasters' ability to
innovate. As discussed below, the record shows that the standard itself
provides broadcasters with significant flexibility, and the requirement
to comply with the standard applies only to a broadcaster's primary
programming streams. Consistent with the rule, broadcasters have ample
opportunity to innovate with other broadcast streams, as well as with
non-broadcast 3.0 services (also known as Broadcast Internet).
47. We find that the A/322 requirement remains essential at this
time for protecting both innovators and investors in the 3.0 space,
allowing stakeholders to develop and purchase equipment with
confidence. As Pearl TV notes, the rule gives ``key certainty'' to
television receiver manufacturers, affording them the confidence to
build Next Gen TV equipment and bring it to market knowing that it will
reliably work with 3.0 signals now and in the future. It likewise
protects consumer investments in 3.0 technology by ensuring that 3.0 TV
sets and other 3.0 equipment they purchase are, and will remain,
compatible with primary 3.0 signals. We agree with LG that
``[c]onsumers have purchased ATSC 3.0-enabled equipment with the good
faith expectation that it will be able to properly receive and decode
an ATSC 3.0 signal not just at the time of purchase, but for years to
come.'' For similar reasons, the rule will also benefit MVPDs as they
begin to receive
[[Page 45360]]
and retransmit 3.0 broadcast signals to their subscribers. Indeed,
broadcasters themselves benefit from the certainty the rule provides,
by knowing that every viewer in their markets who purchases a 3.0 set
will be able to receive their primary programming. Compliance with A/
322 may also help prevent harmful interference to and by broadcasters,
which benefits every stakeholder and consumer. Given these benefits,
almost all commenters support retention of the A/322 rule. We agree
with LG that ``if a broadcaster used a standard other than A/322 for
transmission of its primary broadcast stream, consumers would be unable
to obtain the broadcaster's programming because support for that
bespoke standard would not be incorporated into the consumers'
devices.''
48. Furthermore, the record does not demonstrate any current or
likely harms arising from the rule at this time. The only commenter to
oppose even an extension of the requirement, One Media, identifies no
harms associated with this specific rule and makes no effort to grapple
with its benefits. Instead, One Media contends that broadcasters should
not have ``to keep coming back to seek government approval each time
the standard changes'' and should not have ``standards codified into
their services' rules'' but should instead simply be required to avoid
interference. With respect to the first concern, the Commission has and
will independently monitor the evolution of the ATSC 3.0 standard and
will act to update our rules as necessary and appropriate, as we do in
this Order. As for One Media's general objection to codified standards,
adoption of A/322 into our rules will ensure that broadcasters are
serving the public interest, for the reasons above.
49. Ultimately, we find that the current record does not support
sunsetting the A/322 standard at this time. The rule currently provides
needed protection to consumers, while also affording significant
flexibility to broadcasters. Nevertheless, we agree with commenters
that urge the Commission to continue to monitor the marketplace and the
standard as they develop.\72\ Accordingly, in order to align this
review with that of the substantially similar requirement, we adopt a
new sunset date of July 17, 2027. As noted above, the Commission will
initiate a review approximately one year before the requirement is set
to expire to seek comment on whether it should be extended based on
marketplace conditions at that time. This balanced approach will
provide needed certainty while also providing an additional opportunity
to demonstrate that the A/322 standard should be eliminated or
modified.
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\72\ The Sunsets FNPRM sought comment on whether to update our
rules to incorporate the 2021 version of the A/322 standard.
Commenters on this issue support updating our rules, but pointed out
that a more recent version of A/322 was published by ATSC in March
2022. However, since the comment period closed, there have been two
more updates to A/322, and we have not received any comments about
this new version. Therefore, we decline to update our rules at this
time and will seek comment on this issue in a future proceeding.
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50. Digital Equity and Inclusion. The Commission, as part of its
continuing effort to advance digital equity for all,\73\ including
people of color, people with disabilities, people who live in rural or
Tribal areas, and others who are or have been historically underserved,
marginalized, or adversely affected by persistent poverty or
inequality, invites comment on any equity-related considerations \74\
and benefits (if any) that may be associated with the proposals and
issues discussed herein. Specifically, we seek comment on how our
proposals may promote or inhibit advances in diversity, equity,
inclusion, and accessibility, as well the scope of the Commission's
relevant legal authority.
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\73\ Section 1 of the Communications Act of 1934 as amended
provides that the FCC ``regulat[es] interstate and foreign commerce
in communication by wire and radio so as to make [such service]
available, so far as possible, to all the people of the United
States, without discrimination on the basis of race, color,
religion, national origin, or sex.'' 47 U.S.C. 151.
\74\ The term ``equity'' is used here consistent with Executive
Order 13985 as the consistent and systematic fair, just, and
impartial treatment of all individuals, including individuals who
belong to underserved communities that have been denied such
treatment, such as Black, Latino, and Indigenous and Native American
persons, Asian Americans and Pacific Islanders and other persons of
color; members of religious minorities; lesbian, gay, bisexual,
transgender, and queer (LGBTQ+) persons; persons with disabilities;
persons who live in rural areas; and persons otherwise adversely
affected by persistent poverty or inequality. See Exec. Order No.
13985, 86 FR 7009, Executive Order on Advancing Racial Equity and
Support for Underserved Communities Through the Federal Government
(January 20, 2021).
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IV. Procedural Matters
A. Final Regulatory Flexibility Analysis (FRFA)
51. As required by the Regulatory Flexibility Act of 1980
(RFA),\75\ as amended, an Initial Regulatory Flexibility Analysis
(IRFA) was incorporated in the Second Further Notice of Proposed
Rulemaking (FNPRM) and Third FNPRM in this proceeding. The Federal
Communications Commission (Commission) sought written public comment on
the proposals in the FNPRMs, including comment on the IRFAs. The
Commission received no comments in response to either IRFA. This
present Final Regulatory Flexibility Analysis (FRFA) conforms to the
RFA.\76\
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\75\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
\76\ See 5 U.S.C. 604.
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1. Need for, and Objectives of, the Third Report and Order
52. In the first Next Gen TV Report and Order, the Commission
authorized television broadcasters to use the Next Gen TV transmission
standard, also called ``ATSC 3.0'' or ``3.0,'' on a voluntary, market-
driven basis. ATSC 3.0 is the new TV transmission standard developed by
the Advanced Television Systems Committee as the world's first Internet
Protocol (IP)-based broadcast transmission platform. The Commission
determined in the Next Gen TV Report and Order that broadcasters that
deploy ATSC 3.0 generally must continue to deliver current-generation
digital television (DTV) service, using the ATSC 1.0 transmission
standard, also called ``ATSC 1.0'' or ``1.0,'' to their viewers through
local simulcasting. Specifically, the Commission required full power
and Class A TV stations deploying ATSC 3.0 service to simulcast the
primary video programming stream of their ATSC 3.0 channel in an ATSC
1.0 format.
53. The Commission determined in the Next Gen TV Report and Order
that the local simulcasting requirement is crucial to the deployment of
Next Gen TV service in order to minimize viewer disruption. The Next
Gen TV standard is not backward-compatible with existing TV sets or
receivers, which have only ATSC 1.0 and analog tuners. This means that
consumers will not be able to view ATSC 3.0 transmissions on their
existing televisions without additional equipment. Thus, it is critical
that Next Gen TV broadcasters continue to provide service using the
current ATSC 1.0 standard while the marketplace adopts devices
compatible with the new 3.0 transmission standard in order to avoid
either forcing viewers to acquire new equipment or depriving them of
television service. A TV station cannot, as a technical matter,
broadcast in both 1.0 and 3.0 format from the same facility. Therefore,
local simulcasting will be effectuated through voluntary partnerships
that broadcasters that wish to provide Next Gen TV service must enter
into with other broadcasters in their local markets. Next Gen TV
broadcasters must partner with another
[[Page 45361]]
television station (i.e., a temporary ``host'' station) in their local
market to either: (1) air an ATSC 3.0 channel at the temporary host's
facility, while using their original facility to continue to provide an
ATSC 1.0 simulcast channel, or (2) air an ATSC 1.0 simulcast channel at
the temporary host's facility, while converting their original facility
to the ATSC 3.0 standard in order to provide a 3.0 channel.
54. In this Third Report and Order, we adopt changes to our ATSC
3.0 (3.0 or Next Gen TV) rules considered in both the Second FNPRM (or
Multicast Licensing FNPRM) and Third FNPRM (or Sunsets FNPRM). In the
first part of this Order, the Commission generally adopts the rules
proposed in the Next Gen TV Multicast Licensing FNPRM, establishing a
licensing regime for Next Gen TV stations' multicast streams that are
aired on host stations during the transition period. These rules
facilitate and encourage Next Gen TV stations to preserve consumer
access to multicast programming in 1.0 format during the voluntary ATSC
3.0 transition. They will provide the industry with regulatory
certainty about the legal treatment of licensed multicast streams;
clarify that the originating station (and not the host station) is
responsible for regulatory compliance regarding a multicast stream
being aired on a host station; give the Commission clear enforcement
authority over the originating station in the event of a rule violation
on the hosted multicast programming stream; and facilitate NCE
stations' 3.0 deployment by allowing them to serve as hosts to
commercial stations' multicast streams. The Commission recognizes that
allowing Next Gen TV stations to seek modification of their license to
include capacity on multiple host stations represents a significant
departure from its present licensing regime. The Commission finds that
doing so is appropriate because it is limited to the temporary
broadcast transition to 3.0 and to specific situations for which there
is a clear need.
55. In the second part of this Order, the Commission retains the
substantially similar rule and requirement to comply with the ATSC A/
322 standard until July 17, 2027. The substantially similar rule
requires that the programming aired on a Next Gen TV station's ATSC 1.0
simulcast channel be ``substantially similar'' to that of the primary
video programming stream on the ATSC 3.0 channel.\77\ This means that
the programming must be the same, except for programming features that
are based on the enhanced capabilities of ATSC 3.0 and promotions for
upcoming programs.\78\ In this Order, the Commission finds that this
rule remains necessary to protect consumers by ensuring that over-the-
air (OTA) viewers who rely on 1.0 are able to continue watching the
same programming they watch today, as well as any new programming
offerings on a broadcaster's primary channel that can be reasonably
provided in 1.0 format. The Commission finds that there has not yet
been a sufficient shift in the marketplace that would justify
elimination or modification of the substantially similar rule. The
requirement to comply with the ATSC A/322 standard, which applies only
to Next Gen TV broadcasters' primary video programming stream, provides
certainty to consumers, television receiver manufacturers, and MVPDs
that 3.0 TV sets or other 3.0 TV equipment will be able to receive all
3.0 primary broadcast signals. In this Order, the Commission finds that
this rule remains necessary at this time to protect consumers and other
stakeholders.
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\77\ The substantially similar rule is independent of the
requirement for Next Gen TV broadcasters to simulcast in 1.0 format,
a requirement that does not have a sunset date.
\78\ Such enhanced content or features that cannot reasonably be
provided in ATSC 1.0 format include: targeted advertisements,
``hyper-localized'' content (e.g., geo-targeted weather, targeted
emergency alerts, and hyper-local news), programming features or
improvements created for the 3.0 service (e.g., emergency alert
``wake up'' ability and interactive programming features), enhanced
formats made possible by 3.0 technology (e.g., 4K or HDR), and any
personalization of programming performed by the viewer and at the
viewer's discretion.
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2. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
56. There were no comments filed that specifically addressed the
rules and policies proposed in the IRFA of either the Second or Third
FNPRM.
3. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
57. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments.\79\
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\79\ 5 U.S.C. 604(a)(3).
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58. The Chief Counsel did not file any comments in response to the
proposed rules in this proceeding.
4. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
59. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein.\80\ The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' \81\ In addition, the term ``small business'' has the
same meaning as the term ``small business concern'' under the Small
Business Act.\82\ A small business concern is one which: (1) is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA.\83\ Below, we provide a description of such small entities, as
well as an estimate of the number of such small entities, where
feasible.
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\80\ 5 U.S.C. 603(b)(3).
\81\ Id. 601(6).
\82\ Id. 601(3) (incorporating by reference the definition of
``small-business concern'' in 15 U.S.C. 632). Pursuant to 5 U.S.C.
601(3), the statutory definition of a small business applies
``unless an agency, after consultation with the Office of Advocacy
of the Small Business Administration and after opportunity for
public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\83\ 15 U.S.C. 632.
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60. Television Broadcasting. This industry is comprised of
``establishments primarily engaged in broadcasting images together with
sound.'' These establishments operate television broadcast studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in turn
broadcast the programs to the public on a predetermined schedule.
Programming may originate in their own studio, from an affiliated
network, or from external sources. The SBA small business size standard
for this industry classifies businesses having $41.5 million or less in
annual receipts as small. 2017 U.S. Census Bureau data indicate that
744 firms in this industry operated for the entire year. Of that
number, 657 firms had revenue of less than $25,000,000.\84\ Based on
this data we estimate that the majority of television broadcasters are
small entities
[[Page 45362]]
under the SBA small business size standard.
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\84\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard. We also note that according to the U.S. Census Bureau
glossary, the terms receipts and revenues are used interchangeably.
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61. As of December 31, 2022, there were 1,375 licensed commercial
television stations. Of this total, 1,282 stations (or 93.2%) had
revenues of $41.5 million or less in 2021, according to Commission
staff review of the BIAKelsey Media Access Pro Online Television
Database (MAPro) on January 13, 2023, and therefore these licensees
qualify as small entities under the SBA definition. In addition, the
Commission estimates as of December 31, 2022, there were 383 licensed
noncommercial educational (NCE) television stations, 383 Class A TV
stations, 1,912 LPTV stations and 3,122 TV translator stations. The
Commission, however, does not compile and otherwise does not have
access to financial information for these television broadcast stations
that would permit it to determine how many of these stations qualify as
small entities under the SBA small business size standard.
Nevertheless, given the SBA's large annual receipts threshold for this
industry and the nature of these television station licensees, we
presume that all of these entities qualify as small entities under the
above SBA small business size standard.
62. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired communications networks. Transmission
facilities may be based on a single technology or a combination of
technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a
variety of services, such as wired telephony services, including VoIP
services, wired (cable) audio and video programming distribution, and
wired broadband internet services. By exception, establishments
providing satellite television distribution services using facilities
and infrastructure that they operate are included in this industry.
Wired Telecommunications Carriers are also referred to as wireline
carriers or fixed local service providers.\85\
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\85\ Fixed Local Service Providers include the following types
of providers: Incumbent Local Exchange Carriers (ILECs), Competitive
Access Providers (CAPs) and Competitive Local Exchange Carriers
(CLECs), Cable/Coax CLECs, Interconnected VOIP Providers, Non-
Interconnected VOIP Providers, Shared-Tenant Service Providers,
Audio Bridge Service Providers, and Other Local Service Providers.
Local Resellers fall into another U.S. Census Bureau industry group
and therefore data for these providers is not included in this
industry.
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63. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.\86\
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 5,183 providers
that reported they were engaged in the provision of fixed local
services. Of these providers, the Commission estimates that 4,737
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
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\86\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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64. Cable Companies and Systems (Rate Regulation). The Commission
has developed its own small business size standard for the purpose of
cable rate regulation. Under the Commission's rules, a ``small cable
company'' is one serving 400,000 or fewer subscribers nationwide. Based
on industry data, there are about 420 cable companies in the U.S. Of
these, only seven have more than 400,000 subscribers. In addition,
under the Commission's rules, a ``small system'' is a cable system
serving 15,000 or fewer subscribers. Based on industry data, there are
about 4,139 cable systems (headends) in the U.S. Of these, about 639
have more than 15,000 subscribers. Accordingly, the Commission
estimates that the majority of cable companies and cable systems are
small.
65. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for a
``small cable operator,'' which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than one percent of
all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' For purposes of the Telecom Act Standard, the
Commission determined that a cable system operator that serves fewer
than 677,000 subscribers, either directly or through affiliates, will
meet the definition of a small cable operator based on the cable
subscriber count established in a 2001 Public Notice. Based on industry
data, only six cable system operators have more than 677,000
subscribers. Accordingly, the Commission estimates that the majority of
cable system operators are small under this size standard. We note
however, that the Commission neither requests nor collects information
on whether cable system operators are affiliated with entities whose
gross annual revenues exceed $250 million.\87\ Therefore, we are unable
at this time to estimate with greater precision the number of cable
system operators that would qualify as small cable operators under the
definition in the Communications Act.
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\87\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's
finding that the operator does not qualify as a small cable
operator.
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66. Direct Broadcast Satellite (``DBS'') Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic ``dish'' antenna
at the subscriber's location. DBS is included in the Wired
Telecommunications Carriers industry which comprises establishments
primarily engaged in operating and/or providing access to transmission
facilities and infrastructure that they own and/or lease for the
transmission of voice, data, text, sound, and video using wired
telecommunications networks. Transmission facilities may be based on a
single technology or combination of technologies. Establishments in
this industry use the wired telecommunications network facilities that
they operate to provide a variety of services, such as wired telephony
services, including VoIP services, wired (cable) audio and video
programming distribution; and wired broadband internet services.\88\ By
exception, establishments providing satellite television distribution
services using facilities and infrastructure that they operate are
included in this industry.
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\88\ Included in this industry are: broadband internet service
providers (e.g., cable, DSL); local telephone carriers (wired);
cable television distribution services; long-distance telephone
carriers (wired); closed-circuit television (CCTV) services; VoIP
service providers, using own operated wired telecommunications
infrastructure; direct-to-home satellite system (DTH) services;
telecommunications carriers (wired); satellite television
distribution systems; and multichannel multipoint distribution
services (MMDS).
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67. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that 3,054
firms operated in this industry for the entire year. Of this number,
2,964 firms operated with fewer than 250
[[Page 45363]]
employees.\89\ Based on this data, the majority of firms in this
industry can be considered small under the SBA small business size
standard. According to Commission data however, only two entities
provide DBS service--DIRECTV (owned by AT&T) and DISH Network, which
require a great deal of capital for operation. DIRECTV and DISH Network
both exceed the SBA size standard for classification as a small
business. Therefore, we must conclude based on internally developed
Commission data, in general DBS service is provided only by large
firms.
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\89\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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68. Satellite Master Antenna Television (SMATV) Systems, also known
as Private Cable Operators (PCOs). SMATV systems or PCOs are video
distribution facilities that use closed transmission paths without
using any public right-of-way. They acquire video programming and
distribute it via terrestrial wiring in urban and suburban multiple
dwelling units such as apartments and condominiums, and commercial
multiple tenant units such as hotels and office buildings. SMATV
systems or PCOs are included in the Wired Telecommunications Carriers'
industry which includes wireline telecommunications businesses. The SBA
small business size standard for Wired Telecommunications Carriers
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms in this industry
that operated for the entire year. Of this total, 2,964 firms operated
with fewer than 250 employees.\90\ Thus under the SBA size standard,
the majority of firms in this industry can be considered small.
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\90\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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69. Home Satellite Dish (HSD) Service. HSD or the large dish
segment of the satellite industry is the original satellite-to-home
service offered to consumers and involves the home reception of signals
transmitted by satellites operating generally in the C-band frequency.
Unlike DBS, which uses small dishes, HSD antennas are between four and
eight feet in diameter and can receive a wide range of unscrambled
(free) programming and scrambled programming purchased from program
packagers that are licensed to facilitate subscribers' receipt of video
programming. Because HSD provides subscription services, HSD falls
within the industry category of Wired Telecommunications Carriers. The
SBA small business size standard for Wired Telecommunications Carriers
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms that operated for
the entire year. Of this total, 2,964 firms operated with fewer than
250 employees.\91\ Thus, under the SBA size standard, the majority of
firms in this industry can be considered small.
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\91\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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70. Open Video Systems. The open video system (OVS) framework was
established in 1996 and is one of four statutorily recognized options
for the provision of video programming services by local exchange
carriers. The OVS framework provides opportunities for the distribution
of video programming other than through cable systems. OVS operators
provide subscription services and therefore fall within the SBA small
business size standard for the cable services industry, which is
``Wired Telecommunications Carriers.'' The SBA small business size
standard for this industry classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms in this industry that operated for the entire year. Of
this total, 2,964 firms operated with fewer than 250 employees.\92\
Thus, under the SBA size standard the majority of firms in this
industry can be considered small. Additionally, we note that the
Commission has certified some OVS operators who are now providing
service and broadband service providers (BSPs) are currently the only
significant holders of OVS certifications or local OVS franchises. The
Commission does not have financial or employment information for the
entities authorized to provide OVS however, the Commission believes
some of the OVS operators may qualify as small entities.
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\92\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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71. Broadband Radio Service and Educational Broadband Service.
Broadband Radio Service systems, previously referred to as Multipoint
Distribution Service (MDS) and Multichannel Multipoint Distribution
Service (MMDS) systems, and ``wireless cable,'' \93\ transmit video
programming to subscribers and provide two-way high speed data
operations using the microwave frequencies of the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS) (previously
referred to as the Instructional Television Fixed Service (ITFS)).
Wireless cable operators that use spectrum in the BRS often
supplemented with leased channels from the EBS, provide a competitive
alternative to wired cable and other multichannel video programming
distributors. Wireless cable programming to subscribers resembles cable
television, but instead of coaxial cable, wireless cable uses microwave
channels.\94\
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\93\ The use of the term ``wireless cable'' does not imply that
it constitutes cable television for statutory or regulatory
purposes.
\94\ Generally, a wireless cable system may be described as a
microwave station transmitting on a combination of BRS and EBS
channels to numerous receivers with antennas, such as single-family
residences, apartment complexes, hotels, educational institutions,
business entities and governmental offices. The range of the
transmission depends upon the transmitter power, the type of
receiving antenna and the existence of a line-of-sight path between
the transmitter or signal booster and the receiving antenna.
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72. In light of the use of wireless frequencies by BRS and EBS
services, the closest industry with a SBA small business size standard
applicable to these services is Wireless Telecommunications Carriers
(except Satellite). The SBA small business size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees.\95\ Thus under
the SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
---------------------------------------------------------------------------
\95\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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73. According to Commission data as December 2021, there were
approximately 5,869 active BRS and EBS licenses. The Commission's small
business size standards with respect to BRS involves eligibility for
bidding credits and installment payments in the auction of licenses for
these services. For the auction of BRS licenses, the Commission adopted
criteria for three groups of small businesses. A very small business is
an entity that, together with its affiliates and controlling interests,
has average annual gross revenues exceed $3 million and did not exceed
$15 million for the preceding three years, a small business is an
entity that, together with its affiliates and controlling interests,
has average gross revenues exceed $15 million and did not exceed $40
million for the preceding three years, and an entrepreneur is an entity
that, together with its affiliates and controlling interests, has
average gross revenues not exceeding $3 million
[[Page 45364]]
for the preceding three years. Of the ten winning bidders for BRS
licenses, two bidders claiming the small business status won 4
licenses, one bidder claiming the very small business status won three
licenses and two bidders claiming entrepreneur status won six licenses.
One of the winning bidders claiming a small business status
classification in the BRS license auction has an active licenses as of
December 2021.
74. The Commission's small business size standards for EBS define a
small business as an entity that, together with its affiliates, its
controlling interests and the affiliates of its controlling interests,
has average gross revenues that are not more than $55 million for the
preceding five (5) years, and a very small business is an entity that,
together with its affiliates, its controlling interests and the
affiliates of its controlling interests, has average gross revenues
that are not more than $20 million for the preceding five (5) years. In
frequency bands where licenses were subject to auction, the Commission
notes that as a general matter, the number of winning bidders that
qualify as small businesses at the close of an auction does not
necessarily represent the number of small businesses currently in
service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
75. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA have developed a small business size standard
specifically for incumbent local exchange carriers. Wired
Telecommunications Carriers is the closest industry with an SBA small
business size standard. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms in this industry that operated for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.\96\
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 1,227 providers
that reported they were incumbent local exchange service providers. Of
these providers, the Commission estimates that 929 providers have 1,500
or fewer employees. Consequently, using the SBA's small business size
standard, the Commission estimates that the majority of incumbent local
exchange carriers can be considered small entities.
---------------------------------------------------------------------------
\96\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
---------------------------------------------------------------------------
76. Competitive Local Exchange Carriers (LECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to local exchange services.
Providers of these services include several types of competitive local
exchange service providers.\97\ Wired Telecommunications Carriers is
the closest industry with a SBA small business size standard. The SBA
small business size standard for Wired Telecommunications Carriers
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms that operated in
this industry for the entire year. Of this number, 2,964 firms operated
with fewer than 250 employees.\98\ Additionally, based on Commission
data in the 2021 Universal Service Monitoring Report, as of December
31, 2020, there were 3,956 providers that reported they were
competitive local exchange service providers. Of these providers, the
Commission estimates that 3,808 providers have 1,500 or fewer
employees. Consequently, using the SBA's small business size standard,
most of these providers can be considered small entities.
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\97\ Competitive Local Exchange Service Providers include the
following types of providers: Competitive Access Providers (CAPs)
and Competitive Local Exchange Carriers (CLECs), Cable/Coax CLECs,
Interconnected VOIP Providers, Non-Interconnected VOIP Providers,
Shared-Tenant Service Providers, Audio Bridge Service Providers,
Local Resellers, and Other Local Service Providers.
\98\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
---------------------------------------------------------------------------
77. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. This industry comprises establishments
primarily engaged in manufacturing radio and television broadcast and
wireless communications equipment. Examples of products made by these
establishments are: transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment. The SBA small business size standard for this
industry classifies businesses having 1,250 employees or less as small.
U.S. Census Bureau data for 2017 show that there were 656 firms in this
industry that operated for the entire year. Of this number, 624 firms
had fewer than 250 employees.\99\ Thus, under the SBA size standard,
the majority of firms in this industry can be considered small.
---------------------------------------------------------------------------
\99\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
---------------------------------------------------------------------------
78. Audio and Video Equipment Manufacturing. This industry
comprises establishments primarily engaged in electronic audio and
video equipment for home entertainment, motor vehicles, and public
address and musical instrument amplification. Examples of products made
by these establishments are video cassette recorders, televisions,
stereo equipment, speaker systems, household-type video cameras,
jukeboxes, and amplifiers for musical instruments and public address
systems. The SBA small business size standard for this industry
classifies firms with 750 employees or less as small. According to 2017
U.S. Census Bureau data, 464 firms in this industry operated that year.
Of this number, 399 firms operated with less than 250 employees.\100\
Based on this data and the associated SBA size standard, we conclude
that the majority of firms in this industry are small.
---------------------------------------------------------------------------
\100\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard. We also note that the U.S. Census Bureau withheld
publication of the number of firms that operated for the entire year
and the number of firms that operated with 5 to 9 employees, to
avoid disclosing data for individual companies (see Cell Notes for
``Firms operated for the entire year'' and ``Firms operated for the
entire year with 5 to 9 employees''). Therefore, the number of firms
with employees that meet the SBA size standard would be higher that
noted herein.
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5. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
79. The Order modifies our Next Gen TV licensing processes to
include additional reporting, recordkeeping, and other compliance for
small entities that seek to include hosted multicast streams within
their license. While the Commission is not in a position to determine
whether small entities will have to hire professionals to comply with
our decisions and cannot quantify the cost of compliance for small
entities, as discussed in the Order, the approaches we have taken to
implement the requirements for Next Gen TV multicasting have minimal
cost implications for impacted entities.
80. As discussed in section A of this FRFA, this Order establishes
a licensing
[[Page 45365]]
regime for Next Gen TV stations' multicast streams that are aired on
host stations (as guest streams) during the transition period. The
Order applies the licensing process for primary simulcast streams to
guest multicast streams. Thus, Next Gen TV broadcasters that choose to
deploy ATSC 3.0 service and seek to license guest multicast streams
aired on a host station are subject to certain reporting,
recordkeeping, or other compliance requirements.
81. A Next Gen TV broadcaster seeking to license one or more guest
multicast streams aired on a host station (multicast license applicant)
is subject to the host capacity limit (discussed in section III.D. of
this Order). That is, a Next Gen TV station may not use more 1.0 host
capacity than it could have used if it were still broadcasting in 1.0
on its own facilities. A multicast license applicant is also subject to
most requirements applicable to primary streams, including rules
concerning signal coverage, simulcast agreements, MVPD notice and on-
air consumer notice requirements for each guest multicast stream
(discussed in section III.H. of this Order).
82. All multicast license applicants, including small entities,
must file an application (Form 2100) to modify its license with the
Commission and receive prior Commission approval. This requires the
applicant must prepare an exhibit identifying each guest stream and
provide the following information about each stream, as broadcast: the
host station; channel number (RF and virtual); network affiliation (or
type of programming if unaffiliated); resolution (e.g., 1080i, 720p,
480p, or 480i); the predicted percentage of population within the noise
limited service contour served by the station's original ATSC 1.0
signal that will be served by the host, with a contour overlay map
identifying areas of service loss and, in the case of 1.0 streams,
coverage of the originating station's community of license; and whether
the stream will be simulcast, and if so, the ``paired'' stream in the
other service. Finally, the exhibit must either state that the
applicant will be airing the same programming that it is airing in 1.0
at the time of the application or identify the station that has aired
or is airing the same or a similar programming lineup at the same
resolutions on the same type of facility (individual or shared), as
well as that station's lineup (with resolutions). This exhibit must be
placed on the applicant's public website, with a link provided in the
application.
83. The Order also retains for another four years two existing
compliance requirements for all stations, including small entities, and
eliminates the sunset dates for these requirements. The Order retains
the ``substantially similar'' rule (see section III.I. of this Order).
This rule requires that the programming aired on a Next Gen TV
station's ATSC 1.0 simulcast channel be ``substantially similar'' to
that of the primary video programming stream on the ATSC 3.0 channel.
This means that the programming must be the same, except for
programming features that are based on the enhanced capabilities of
ATSC 3.0, including targeted advertisements, and promotions for
upcoming programs. This rule will now expire in 2027absent Commission
action. The Order retains the requirement to comply with the ATSC A/322
standard (``Physical Layer Protocol'') (A/322) (see section III.J of
this Order), which is the standard that defines the waveforms that ATSC
3.0 signals may take. The requirement to comply with A/322 will now
expire in 2027 absent Commission action.
6. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
84. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its approach, which may
include the following four alternatives (among others): ``(1) the
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities; (3) the use of performance rather than design standards; and
(4) an exemption from coverage of the rule, or any part thereof, for
small entities.'' \101\
---------------------------------------------------------------------------
\101\ 5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------
85. The Commission has authorized television broadcasters to use
the Next Gen TV (ATSC 3.0) standard on a voluntary, market-driven
basis. As observed in the Final Regulatory Flexibility Analysis of the
2017 First Next Gen TV Report and Order, this means that broadcasters
decide whether (and if so when) to deploy ATSC 3.0 service and bear the
costs associated with such deployment. All broadcasters, including
small entities, will need to undertake any costs or burdens associated
with ATSC 3.0 service should they choose to do so.
86. The rules concerning multicast licensing provide increased
flexibility to broadcasters without imposing additional obligations. By
expanding the ability of broadcasters to place licensed streams on
additional host partners, the rules may allow small broadcast entities
transitioning to ATSC 3.0 to experience positive economic impacts
through partnerships with unaffiliated third parties. NCE television
stations in particular, both large and small, will experience positive
benefits from the rules, which could improve their ability to
participate in the transition to Next Gen TV. Although we intended to
limit certain simulcast multicast stream relief only to NCE stations or
commercial stations airing multicast streams on NCE partner hosts, we
will instead allow any Next Gen TV station to apply for this relief
under the non-expedited process, but emphasize that all applicants,
including small entities, must demonstrate why this relief is in the
public interest and outweighs any potential harms. In addition, the
multicast licensing approach minimizes administrative burdens for all
broadcasters, including small broadcasters. The rules streamline the
current process whereby broadcasters request special temporary
authority on a case-by-case basis. We also considered concerns
regarding the potential abuse of these rules in that the multicast
streams may allow stations to evade local ownership rules. Consistent
with our previous decisions, hosting multicast streams on a temporary
host station's facility will not result in any additional requirements
for small entities related to television stations attribution (e.g.,
filing ownership reports). In finding that it is appropriate to limit a
Next Gen TV station's 1.0 host capacity to that which it could deploy
on its own 1.0 channel, we determined that other alternatives related
to proposed capacity limits would be overly restrictive to all
stations, including small entities, and that the best metric will be
the number and resolution of streams actually airing (or that
previously actually aired) on specific 1.0 facilities. In retaining the
rules that require stations, including small entities, to broadcast
substantially similar programing to their primary streams, we rejected
the alternatives presented by broadcasters that argued that market
incentives would ensure OTA viewers have access to this programming.
7. Report to Congress
87. The Commission will send a copy of the Third Report and Order,
including this FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act.\102\ In
[[Page 45366]]
addition, the Commission will send a copy of the Third Report and
Order, including this FRFA, to the Chief Counsel for Advocacy of the
SBA. The Order and FRFA (or summaries thereof) will also be published
in the Federal Register.\103\
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\102\ See 5 U.S.C. 801(a)(1)(A).
\103\ See id. 604(b).
---------------------------------------------------------------------------
B. Final PRA Analysis
88. This document contains new information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA).\104\ The
requirements will be submitted to the Office of Management and Budget
(OMB) for review under Section 3507(d) of the PRA. OMB, the general
public, and other Federal agencies will be invited to comment on the
information collection requirements contained in this proceeding. The
Commission will publish a separate document in the Federal Register at
a later date seeking these comments. In addition, we note that pursuant
to the Small Business Paperwork Relief Act of 2002 (SBPRA),\105\ we
will seek specific comment on how the Commission might further reduce
the information collection burden for small business concerns with
fewer than 25 employees.
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\104\ The Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13, 109 Stat. 163 (1995) (codified in Chapter 35 of title 44
U.S.C.).
\105\ The Small Business Paperwork Relief Act of 2002 (SBPRA),
Public Law 107-198, 116 Stat. 729 (2002) (codified in Chapter 35 of
title 44 U.S.C.). See 44 U.S.C. 3506(c)(4).
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C. Congressional Review Act
89. The Bureau has determined, and the Administrator of the Office
of Information and Regulatory Affairs, Office of Management and Budget,
concurs that these rules are non-major under the Congressional Review
Act, 5 U.S.C. 804(2). The Commission will send a copy of this Third
Report and Order to Congress and the Government Accountability office,
pursuant to 5 U.S.C. 801(a)(1)(A).
V. Ordering Clauses
90. It is ordered, pursuant to the authority found in sections 1,
4, 7, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338, 399b, 403,
534, and 535 of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154, 157, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338,
399b, 403, 534, and 535, this Third Report and Order is hereby adopted,
effective thirty (30) days after the date of publication in the Federal
Register.
91. It is further ordered that the Commission's rules are hereby
amended as set forth in Appendix B of the Third Report and Order and
will become effective 30 days after publication in the Federal
Register, except for 47 CFR 73.3801, 73.6029, and 74.782 which contain
new or modified information collection requirements that require
approval by the OMB under the PRA and which shall become effective
after the Commission publishes a notice in the Federal Register
announcing OMB approval and the effective date of the rules.
92. It is further ordered that, pursuant to 47 U.S.C. 155(c), the
Chief, Media Bureau, is granted delegated authority for the purpose of
amending FCC Form 2100 as necessary to implement the licensing process
adopted herein.
93. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Third Report and Order, including the Initial and Final
Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of
the Small Business Administration.
94. It is further ordered, that pursuant to section 801(a)(1)(A) of
the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission
shall send a copy of this Third Report and Order to Congress and to the
Government Accountability Office.
List of Subjects in 47 CFR Parts 73 and 74
Communications equipment, Television.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 73 and 74 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
Sec. 73.682 [Amended]
0
2. Amend Sec. 73.682 by:
0
a. Lifting the stay on paragraph (f)(2)(iii) published on April 5, 2023
(88 FR 20076).
0
b. In paragraph (f)(2)(iii), removing the date ``March 6, 2023'' and
adding, in its place, ``July 17, 2027''.
0
c. Removing Note 2 to Sec. 73.682.
0
3. Amend Sec. 73.3801 by:
0
a. In paragraph (b)(3), by removing the date ``July 17, 2023'' and
adding in its place ``July 17, 2027'';
0
b. Revising paragraphs (f)(5) and (6); and
0
c. Adding paragraph (i).
The revisions and addition read as follows:
Sec. 73.3801 Full power television simulcasting during the ATSC 3.0
(Next Gen TV) transition.
* * * * *
(f) * * *
(5) Expedited processing. An application filed in accordance with
the streamlined process in paragraph (f)(3) of this section will
receive expedited processing provided, for stations requesting to air
an ATSC 1.0 primary signal on the facilities of a host station, that
station will provide ATSC 1.0 service to at least 95 percent of the
predicted population within the noise limited service contour of its
original ATSC 1.0 facility.
(6) Required information. (i) An application in paragraph (f)(2) of
this section must include the following information:
(A) The station or stations serving as the host or hosts,
identified by call sign and facility identification number, if
applicable;
(B) The technical facilities of each host station, if applicable;
(C) The DMA of the originating broadcaster's facility and the DMA
of each host station, if applicable;
(D) A web link to the exhibit described in paragraph (i) of this
section, if applicable; and
(E) Any other information deemed necessary by the Commission to
process the application.
(ii) If an application in paragraph (f)(2) of this section includes
a request to air an ATSC 1.0 signal on the facilities of a host station
or stations, the broadcaster must, in addition to the information in
paragraph (f)(6)(i) of this section, also indicate on the application:
(A) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal;
(B) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal that will lose
the station's ATSC 1.0 service as a result of the hosting arrangement
or arrangements, including identifying areas of service loss by
providing a contour overlap map; and
(C) Whether the ATSC 1.0 primary stream simulcast signal aired on
the host station will serve at least 95 percent of the population in
paragraph (f)(6)(ii)(A) of this section.
* * * * *
[[Page 45367]]
(i) Multicast streams. A Next Gen TV station is not required to
license, under paragraph (f) of this section, a ``guest'' multicast
programming stream that it originates and which is aired on a host
station. If it chooses to do so, it and each of its licensed guest
multicast streams must comply with the requirements of this section
(including those otherwise applicable only to primary streams), except
for paragraph (f)(5) of this section and as otherwise provided in this
paragraph. For purposes of this section, a ``multicast'' stream refers
to a video programming stream other than the primary video programming
stream.
(1) 1.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 1.0 multicast stream(s) aired on one or more ATSC 1.0 hosts
pursuant to paragraph (f) of this section. Non-simulcast streams are
not required to comply with paragraph (b) of this section.
(i) Host capacity limit. A Next Gen TV station that has converted
its own facility to 3.0 must not license more capacity on one or more
partner host stations, in the aggregate, than the station could use if
it were still operating on its own facility in 1.0. It must demonstrate
compliance with this limit in its license application exhibit.
(ii) [Reserved]
(2) 3.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 3.0 multicast stream(s) aired on one or more ATSC 3.0 hosts
pursuant to paragraph (f) of this section.
(3) Children's television. A Next Gen TV station may rely on a
multicast stream it is airing via a host partner to comply with the
Commission's children's television programming requirement in Sec.
73.671. Such a stream must either be carried on the same host as the
Next Gen TV station's primary stream, or on a host that serves at least
95 percent of the predicted population served by the Next Gen TV
station's pre-transition 1.0 signal.
(4) Application exhibit required. A Next Gen TV station seeking to
license hosted multicast streams must prepare and host on its public
website (or its Online Public Inspection File if the station does not
have a dedicated website) the exhibit referenced in paragraph
(f)(6)(i)(D) of this section. The exhibit must contain the following:
(i) For each hosted stream: channel number (RF and virtual);
network affiliation (or type of programming if unaffiliated);
resolution (e.g., 1080i, 720p, 480p, or 480i); whether the stream will
be simulcast; and if so, the identity of the paired stream in the other
service; and
(ii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the host capacity limit.
It may do so by either showing that it is seeking hosting only for
streams it was broadcasting on its own 1.0 facility prior to its
transition to 3.0, or identifying another 1.0 station that is carrying
or has carried the same or a similar programming lineup at the same
resolutions on the same type of facility (individual or shared);
(iii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the coverage requirement
for guest multicast streams, including by providing a contour map
showing the guest multicast stream will continue to serve the station's
community of license; and
(iv) Changes to the exhibit. Changes to the affiliation or content
of a stream that would not result in the use of additional capacity,
the elimination of a stream, or non-substantive corrections may be made
at the discretion of the applicant but must be reflected in a timely
update to the existing public exhibit and an emailed notice to the
Chief of the Media Bureau's Video Division or their designee. No other
changes, including to the location of the exhibit itself, may be made
without the filing and approval of a new application.
0
4. Amend Sec. 73.6029 by:
0
a. In paragraph (b)(3), remove the date ``July 17, 2023'' and add, in
its place, ``July 17, 2027'';
0
b. Revising paragraphs (f)(5) and (6); and
0
c. Adding paragraph (i).
The revisions and addition read as follows:
Sec. 73.6029 Class A television simulcasting during the ATSC 3.0
(Next Gen TV) transition.
* * * * *
(f) * * *
(5) Expedited processing. An application filed in accordance with
the streamlined process in paragraph (f)(3) of this section will
receive expedited processing provided, for stations requesting to air
an ATSC 1.0 primary signal on the facilities of a host station, that
station will provide ATSC 1.0 service to at least 95 percent of the
predicted population within the noise limited service contour of its
original ATSC 1.0 facility.
(6) Required information. (i) An application in paragraph (f)(2) of
this section must include the following information:
(A) The station or stations serving as the host or hosts,
identified by call sign and facility identification number, if
applicable;
(B) The technical facilities of each host station, if applicable;
(C) The DMA of the originating broadcaster's facility and the DMA
of each host station, if applicable;
(D) A web link to the exhibit described in paragraph (i) of this
section, if applicable; and
(E) Any other information deemed necessary by the Commission to
process the application.
(ii) If an application in paragraph (f)(2) of this section includes
a request to air an ATSC 1.0 signal on the facilities of a host station
or stations, the broadcaster must, in addition to the information in
paragraph (f)(6)(i) of this section, also indicate on the application:
(A) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal;
(B) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal that will lose
the station's ATSC 1.0 service as a result of the hosting arrangement
or arrangements, including identifying areas of service loss by
providing a contour overlap map; and
(C) Whether the ATSC 1.0 primary stream simulcast signal aired on
the host station will serve at least 95 percent of the population in
paragraph (f)(6)(ii)(A) of this section.
* * * * *
(i) Multicast streams. A Next Gen TV station is not required to
license, under paragraph (f) of this section, a ``guest'' multicast
programming stream that it originates and which is aired on a host
station. If it chooses to do so, it and each of its licensed guest
multicast streams must comply with the requirements of this section
(including those otherwise applicable only to primary streams), except
for paragraph (f)(5) of this section and as otherwise provided in this
paragraph. For purposes of this section, a ``multicast'' stream refers
to a video programming stream other than the primary video programming
stream.
(1) 1.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 1.0 multicast stream(s) aired on one or more ATSC 1.0 hosts
pursuant to paragraph (f) of this section. Non-simulcast streams are
not required to comply with paragraph (b) of this section.
(i) Host capacity limit. A Next Gen TV station that has converted
its own facility to 3.0 must not license more capacity on one or more
partner host stations, in the aggregate, than the station could use if
it were still operating on its own facility in 1.0. It must demonstrate
compliance with this limit in its license application exhibit.
[[Page 45368]]
(2) 3.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 3.0 multicast stream(s) aired on one or more ATSC 3.0 hosts
pursuant to paragraph (f) of this section.
(3) Children's television. A Next Gen TV station may rely on a
multicast stream it is airing via a host partner to comply with the
Commission's children's television programming requirement in Sec.
73.671. Such a stream must either be carried on the same host as the
Next Gen TV station's primary stream, or on a host that serves at least
95 percent of the predicted population served by the Next Gen TV
station's pre-transition 1.0 signal.
(4) Application exhibit required. A Next Gen TV station seeking to
license hosted multicast streams must prepare and host on its public
website (or its Online Public Inspection File if the station does not
have a dedicated website) the exhibit referenced in paragraph
(f)(6)(i)(D) of this section. The exhibit must contain the following:
(i) For each hosted stream: channel number (RF and virtual);
network affiliation (or type of programming if unaffiliated);
resolution (e.g., 1080i, 720p, 480p, or 480i); whether the stream will
be simulcast; and if so, the identity of the paired stream in the other
service; and
(ii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the host capacity limit.
It may do so by either showing that it is seeking hosting only for
streams it was broadcasting on its own 1.0 facility prior to its
transition to 3.0, or identifying another 1.0 station that is carrying
or has carried the same or a similar programming lineup at the same
resolutions on the same type of facility (individual or shared);
(iii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the coverage requirement
for guest multicast streams, including by providing a contour map
showing the guest multicast stream will continue to serve the station's
community of license; and
(iv) Changes to the exhibit. Changes to the affiliation or content
of a stream that would not result in the use of additional capacity,
the elimination of a stream, or non-substantive corrections may be made
at the discretion of the applicant but must be reflected in a timely
update to the existing public exhibit and an emailed notice to the
Chief of the Media Bureau's Video Division or their designee. No other
changes, including to the location of the exhibit itself, may be made
without the filing and approval of a new application.
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTIONAL SERVICES
0
5. The authority citation for part 74 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, 307, 309, 310, 325, 336 and
554.
0
6. Amend Sec. 74.782 by:
0
a. In paragraph (b)(3) remove the date ``July 17, 2023'' and add, in
its place, ``July 17, 2027'';
0
b. Revising paragraphs (g)(5) and (6); and
0
c. Adding paragraph (j).
The revisions and addition read as follows:
Sec. 74.782 Low power television and TV translator simulcasting
during the ATSC 3.0 (Next Gen TV) transition.
* * * * *
(g) * * *
(5) Expedited processing. An application filed in accordance with
the streamlined process in paragraph (f)(3) of this section will
receive expedited processing provided, for stations requesting to air
an ATSC 1.0 primary signal on the facilities of a host station, that
station will provide ATSC 1.0 service to at least 95 percent of the
predicted population within the noise limited service contour of its
original ATSC 1.0 facility.
(6) Required information. (i) An application in paragraph (f)(2) of
this section must include the following information:
(A) The station or stations serving as the host or hosts,
identified by call sign and facility identification number, if
applicable;
(B) The technical facilities of each host station, if applicable;
(C) The DMA of the originating broadcaster's facility and the DMA
of each host station, if applicable;
(D) A web link to the exhibit described in paragraph (i) of this
section, if applicable; and
(E) Any other information deemed necessary by the Commission to
process the application.
(ii) If an application in paragraph (f)(2) of this section includes
a request to air an ATSC 1.0 signal on the facilities of a host station
or stations, the broadcaster must, in addition to the information in
paragraph (f)(6)(i) of this section, also indicate on the application:
(A) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal;
(B) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal that will lose
the station's ATSC 1.0 service as a result of the hosting arrangement
or arrangements, including identifying areas of service loss by
providing a contour overlap map; and
(C) Whether the ATSC 1.0 primary stream simulcast signal aired on
the host station will serve at least 95 percent of the population in
paragraph (f)(6)(ii)(A) of this section.
* * * * *
(j) Multicast streams. A Next Gen TV station is not required to
license, under paragraph (f) of this section, a ``guest'' multicast
programming stream that it originates and which is aired on a host
station. If it chooses to do so, it and each of its licensed guest
multicast streams must comply with the requirements of this section
(including those otherwise applicable only to primary streams), except
for paragraph (f)(5) of this section and as otherwise provided in this
paragraph. For purposes of this section, a ``multicast'' stream refers
to a video programming stream other than the primary video programming
stream.
(1) 1.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 1.0 multicast stream(s) aired on one or more ATSC 1.0 hosts
pursuant to paragraph (f) of this section. Non-simulcast streams are
not required to comply with paragraph (b) of this section.
(i) Host capacity limit. A Next Gen TV station that has converted
its own facility to 3.0 must not license more capacity on one or more
partner host stations, in the aggregate, than the station could use if
it were still operating on its own facility in 1.0. It must demonstrate
compliance with this limit in its license application exhibit.
(2) 3.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 3.0 multicast stream(s) aired on one or more ATSC 3.0 hosts
pursuant to paragraph (f) of this section.
(3) Children's television. A Next Gen TV station may rely on a
multicast stream it is airing via a host partner to comply with the
Commission's children's television programming requirement in Sec.
73.671 of thischapter. Such a stream must either be carried on the same
host as the Next Gen TV station's primary stream, or on a host that
serves at least 95 percent of the predicted population served by the
Next Gen TV station's pre-transition 1.0 signal.
(4) Application exhibit required. A Next Gen TV station seeking to
license hosted multicast streams must prepare and host on its public
website (or its Online Public Inspection File if the station does not
have a dedicated
[[Page 45369]]
website) the exhibit referenced in paragraph (f)(6)(i)(D) of this
section. The exhibit must contain the following:
(i) For each hosted stream: channel number (RF and virtual);
network affiliation (or type of programming if unaffiliated);
resolution (e.g., 1080i, 720p, 480p, or 480i); whether the stream will
be simulcast; and if so, the identity of the paired stream in the other
service; and
(ii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the host capacity limit.
It may do so by either showing that it is seeking hosting only for
streams it was broadcasting on its own 1.0 facility prior to its
transition to 3.0, or identifying another 1.0 station that is carrying
or has carried the same or a similar programming lineup at the same
resolutions on the same type of facility (individual or shared);
(iii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the coverage requirement
for guest multicast streams, including by providing a contour map
showing the guest multicast stream will continue to serve the station's
community of license; and
(iv) Changes to the exhibit. Changes to the affiliation or content
of a stream that would not result in the use of additional capacity,
the elimination of a stream, or non-substantive corrections may be made
at the discretion of the applicant but must be reflected in a timely
update to the existing public exhibit and an emailed notice to the
Chief of the Media Bureau's Video Division or their designee. No other
changes, including to the location of the exhibit itself, may be made
without the filing and approval of a new application.
[FR Doc. 2023-14408 Filed 7-14-23; 8:45 am]
BILLING CODE 6712-01-P
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