Authorizing Permissive Use of the “Next Generation” Broadcast Television Standard, 43478-43492 [2020-13837]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 85, Number 138 (Friday, July 17, 2020)]
[Rules and Regulations]
[Pages 43478-43492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13837]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 74

[GN Docket No. 16-142; FCC 20-72; FRS 16880]


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 Commission resolves the pending issues 
in this proceeding that authorized broadcasters to use ATSC 3.0, the 
``Next Generation'' broadcast television (Next Gen TV) transmission 
standard. First, the FCC addresses the three issues raised in the 
Further Notice of Proposed Rulemaking that was issued in conjunction 
with the Next Gen TV Report and Order. Specifically, we provide 
additional guidance to broadcasters deploying Next Gen TV that wish to 
receive a waiver of our local simulcasting rules, decline to permit at 
this time the use of vacant broadcast channels for purposes of Next Gen 
TV deployment, and clarify the ``significantly viewed'' status of Next 
Gen TV stations. Second, we dismiss and, on alternative and independent 
grounds, deny the two petitions for reconsideration of the Next Gen TV 
Report and Order.

DATES: Effective August 17, 2020.

FOR FURTHER INFORMATION CONTACT: For additional information, contact 
Evan Baranoff, [email protected], of the Media Bureau, Policy 
Division, (202) 418-7142. Direct press inquiries to Janice Wise at 
(202) 418-8165.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order and Order on Reconsideration, FCC 20-72, adopted on 
June 3, 2020 and released on June 16, 2020. The full text of this 
document is available electronically via the FCC's Electronic Document 
Management System (EDOCS) website at https://www.fcc.gov/edocs or via 
the FCC's Electronic Comment Filing System (ECFS) website at https://www.fcc.gov/ecfs. (Documents will be available electronically in ASCII, 
Microsoft Word, and/or Adobe Acrobat.) This document is also available 
for public inspection and copying during regular business hours in the 
FCC Reference Information Center, which is located in Room CY-A257 at 
FCC Headquarters, 445 12th Street SW, Washington, DC 20554. The 
Reference Information Center is open to the public Monday through 
Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 
a.m. The complete text may be purchased from the Commission's copy 
contractor, 445 12th Street, SW, Room CY-B402, Washington, DC 20554. 
Alternative formats are available for people with disabilities 
(Braille, large print, electronic files, audio format), by sending an 
email to [email protected] 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 Second Report and Order and Order on Reconsideration, we 
resolve the pending issues in this proceeding that authorized 
broadcasters to use the ``Next Generation'' broadcast television (Next 
Gen TV) transmission standard. First, we address the three issues 
raised in the Further Notice of Proposed Rulemaking that was issued in 
conjunction with the Next Gen TV Report and Order. Specifically, we 
provide additional guidance to broadcasters deploying Next Gen TV that 
wish to receive a waiver of our local simulcasting rules, decline to 
permit at this time the use of vacant broadcast channels for purposes 
of Next Gen TV deployment, and clarify the

[[Page 43479]]

``significantly viewed'' status of Next Gen TV stations. Second, we 
dismiss and, on alternative and independent grounds, deny the two 
petitions for reconsideration of the Next Gen TV Report and Order.

II. Background

    2. In the 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 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 
deploying 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 television stations (Class A TV) 
deploying ATSC 3.0 service to simulcast the primary video programming 
stream of their ATSC 3.0 channels in an ATSC 1.0 format.
    3. In the Next Gen TV Report and Order, the Commission determined 
that the local simulcasting requirement is crucial to the deployment of 
Next Gen TV service in order to minimize viewer disruption. This is 
because 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 to deliver DTV 
service 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. 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 will be effectuated through voluntary 
partnerships that broadcasters seeking to provide Next Gen TV service 
enter into with other broadcasters in their local markets. A Next Gen 
TV broadcaster 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.
    4. The Commission established a process for considering 
applications to deploy ATSC 3.0 service, which included, among other 
requirements, establishing coverage requirements for a Next Gen TV 
station's ATSC 1.0 simulcast signal. The Commission's ATSC 1.0 
simulcast coverage requirement sought to minimize disruption to viewers 
resulting from the voluntary deployment of ATSC 3.0 by recognizing that 
if a station moves its ATSC 1.0 signal to a partner simulcast host 
station with a different transmitter location, some existing over-the-
air (OTA) viewers may no longer be able to receive the 1.0 signal. 
Among other obligations, the Commission required 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 would 
continue to provide ATSC 1.0 simulcast service to its entire community 
of license.
    5. While the Commission's rules require that full power and Class A 
TV stations that convert their existing facility to ATSC 3.0 provide an 
ATSC 1.0 simulcast signal that covers a station's entire community of 
license, the Commission recognized that in certain circumstances such 
an arrangement may not be viable. Accordingly, the Commission 
established a waiver standard for the ATSC 1.0 simulcast requirement in 
order to facilitate the voluntary deployment of ATSC 3.0 service. 
Specifically, the Commission stated that it would favor requests for 
waiver of the obligation to provide ATSC 1.0 simulcast service if the 
station can demonstrate both that: (1) It has ``no viable local 
simulcasting partner'' in its market; and (2) it will ``make reasonable 
efforts to preserve 1.0 service to existing viewers in its community of 
license and/or otherwise minimize the impact on such viewers (for 
example, by providing free or low cost ATSC 3.0 converters to 
viewers).'' The Commission stated that it would consider waiver 
requests from full power and Class A TV stations to transition directly 
from ATSC 1.0 to ATSC 3.0 service on the station's existing facility 
without providing an ATSC 1.0 simulcast service at all. Alternatively, 
a station may request a waiver of the ATSC 1.0 simulcast requirement so 
it can air an ATSC 1.0 simulcast signal from a partner simulcast host 
that does not cover all or a portion of the station's community of 
license or can provide only a lower signal threshold over the station's 
community of license than that required by the rules. Thus, a station 
may seek a waiver to either provide no 1.0 simulcast service to its 
community of license or partial 1.0 simulcast service to its community 
of license. In both situations, a waiver of the community of license 
coverage requirement in 47 CFR 73.3801(c) is required and the waiver 
standard set forth in the Next Gen TV Report and Order applies.
    6. In the Next Gen TV Further Notice, the Commission sought comment 
on three topics relating to local simulcasting rules. First, it sought 
further comment on issues related to waivers of, and exemptions from, 
the local simulcasting requirement. Specifically, the Commission sought 
comment on whether further guidance should be provided about the 
circumstances in which it would grant such a waiver, including how to 
define whether a station has ``no viable local simulcasting partner'' 
and whether a station has taken ``reasonable efforts to preserve 
service and/or minimize impact on viewers.'' Second, the Commission 
sought further comment on whether to let full power broadcasters use 
channels in the television broadcast band that are vacant to facilitate 
the transition to ATSC 3.0. Third, the Commission tentatively concluded 
that local simulcasting should not change the ``significantly viewed 
status'' of a Next Gen TV station for purposes of determining MVPD 
carriage and sought comment on that conclusion.
    7. The Commission received 19 comments and eight reply comments in 
response to the Next Gen TV Further Notice. Broadcaster commenters 
again urged the Commission to continue to provide broadcasters with 
``flexibility'' to facilitate their deployment of ATSC 3.0 service, 
such as through waivers of, and/or additional exemptions from, the 
local simulcasting rules and by permitting broadcasters to temporarily 
use vacant channels. Meanwhile, MVPD commenters urged the Commission to 
exercise restraint in issuing waivers of, or granting additional 
exemptions from, the local simulcasting rules. And public interest 
groups, white space proponents, and NCTA opposed the use of vacant 
channels as temporary transition channels by broadcasters.
    8. The Commission also received two petitions for reconsideration 
of the Next Gen TV Report and Order: One filed by

[[Page 43480]]

the American Television Alliance (ATVA) and the other filed by NCTA--
The internet & Television Association (NCTA). NCTA and ATVA seek 
reconsideration of various aspects of the local simulcasting rules, as 
well as the Commission's decisions concerning voluntary carriage of 
ATSC 3.0 signals through retransmission consent, patent licensing, and 
the sunset of the A/322 standard. We received eight oppositions to 
these petitions and three replies to the oppositions.

III. Second Report and Order

    9. In this Second Report and Order, we provide guidance on how 
Commission staff will evaluate petitions for waiver of our local 
simulcasting rules. In addition, we decline at this time to permit 
broadcasters to use vacant in-band channels for purposes of voluntary 
ATSC 3.0 deployment. Finally, we adopt the Commission's tentative 
conclusion that the ``significantly viewed'' status of a Next Gen TV 
station will not change if it moves its ATSC 1.0 simulcast channel to a 
host facility.

A. Local Simulcasting Waivers and Exemptions

    10. We affirm and clarify the local simulcasting waiver standard 
adopted in the Next Gen TV Report and Order. As explained below, we 
will presume that a station satisfies the first element of our waiver 
standard, which is that it has no ``viable simulcasting partner,'' if 
it has fewer than three potential simulcasting partners within its DMA 
that can cover its entire community of license. To satisfy the second 
part of our waiver standard, which is to provide ``reasonable efforts 
to preserve 1.0 service,'' we will look favorably on waiver applicants 
that take steps to ensure their viewers have the ability to continue 
watching the station. For example, waiver applicants may provide, upon 
request, free or low-cost ATSC 3.0 converter devices to over-the-air 
viewers within the station's community of license who otherwise no 
longer would be able to receive the station's 1.0 signal over the air 
as a result of the station's conversion to ATSC 3.0.\1\ Stations 
choosing to provide such devices will be expected to inform viewers 
about the availability of such free or low-cost ATSC 3.0 converter 
devices and how to request or obtain such equipment. In addition, we 
decline to adopt a blanket exemption from the local simulcasting 
requirement for noncommercial educational (NCE) or Class A TV stations, 
preferring instead to rely on our waiver standard to afford these 
stations with any additional flexibility. Finally, we clarify that the 
Bureau has delegated authority to consider requests for waivers of the 
local simulcasting requirement and, consistent with the timing for 
reviewing non-expedited applications seeking authorization to deploy 
ATSC 3.0, the Bureau generally will process applications with waiver 
requests within 60 business days after giving public notice of the 
waiver request. Waiver requests that comply with the criteria as 
explained in this Order will be viewed favorably.
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    \1\ Generally, we expect that a station seeking a waiver of the 
community of license coverage requirement will not be able to 
satisfy the standard for expedited processing, which requires a 
station to provide ATSC 1.0 simulcast service to at least 95 percent 
of the predicted population within the station's original noise 
limited service contour (NLSC). Thus, we remind prospective waiver 
applicants that a station that needs a waiver of the community of 
license coverage requirement will also need to make the showing 
required for non-expedited applications established by the Next Gen 
TV Report and Order, which includes providing information about what 
steps, if any, the station plans to take to minimize the impact of 
the service loss Accordingly, as a practical matter, we expect that 
a station choosing to provide ATSC 3.0 converter devices as a means 
to minimize the impact of not simulcasting on viewers will choose to 
provide such devices throughout its entire NLSC.
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    11. We recognize that some stations, such as public television and 
other NCE stations, Class A TV stations, and stations in small markets 
or in rural, remote, and isolated areas, may face unique challenges in 
securing local simulcasting partners. We seek to provide such stations 
with greater flexibility to deploy ATSC 3.0 service, provided they take 
steps to protect their viewers from the potential loss of ATSC 1.0 
service resulting from a waiver. With these principles in mind, we 
provide, below, additional guidance on the waiver standard adopted in 
the Next Gen TV Report and Order.
1. ``No Viable Local Simulcasting Partner''
    12. With respect to the first prong of our waiver test, we will 
presume that a full power Next Gen TV station has ``no viable local 
simulcasting partner'' if it has fewer than three (i.e., zero to two) 
potential full power simulcasting partners in the same DMA that can 
cover its entire community of license. If a full power station seeking 
a waiver is found to have fewer than three full power stations in its 
DMA that can meet the local simulcasting coverage requirements in 47 
CFR 73.3801(c), then the station will receive a presumption that it 
meets the ``no viable local simulcasting partner'' prong of the waiver 
standard.\2\ On the other hand, we will presume that full power 
stations with at least three potential simulcast partners have viable 
simulcasting partners and, thus, are not eligible for a waiver of 47 
CFR 73.3801(c), absent compelling circumstances.
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    \2\ Commission staff estimates that, initially, about 8 percent 
of NCE stations and about 5 percent of commercial stations will be 
able to meet this threshold. This estimate was determined using LMS 
data. Staff calculated NLSCs using TVStudy for stations remaining 
on-air following the Incentive Auction. For each station under the 
test, the boundaries of the community of license were determined by 
matching the community to a Census Place or Census Designated Place. 
The number of viable sharing partners was determined by counting the 
number of other stations in the same DMA as the station under the 
test whose NLSC completely covered the boundaries of the community 
of license.
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    13. We adopt this criteria based on the proposals of several 
commenters, including the National Association of Broadcasters (NAB) 
and the joint comments of Public Broadcasting Service (PBS), 
Corporation for Public Broadcasting (CPB), and America's Public 
Television Stations (APTS), collectively ``PTV.'' Adopting this 
presumption will provide stakeholders increased predictability 
regarding what stations may be eligible for a waiver. In adopting a 
threshold of fewer than three potential partners, we recognize that not 
all stations will have an interest in serving as a 1.0 simulcast host, 
and we avoid the need for a broadcast station to demonstrate 
individually to the Commission that no station is willing to be its 
simulcast partner. We also find that the threshold of fewer than three 
potential simulcasting partners will provide transitioning stations 
with a reasonable opportunity to find suitable simulcast partners.\3\ 
At the same time, the threshold will generally limit waiver relief to 
stations in rural, remote, and isolated areas--those stations that we 
believe will face the most significant challenges in finding local 
simulcasting partners.\4\ Consistent with NAB's proposal, we will 
consider only full power stations in our calculation of available 1.0 
simulcast partners in considering a waiver request submitted by a full 
power station, because Class A TV and LPTV stations do not cover 
comparable service areas and LPTV

[[Page 43481]]

stations constitute a secondary service that does not receive the same 
interference protection afforded to full power stations.\5\
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    \3\ We agree with NAB's reasoning that ``[i]f there are only one 
or two other stations in a market, a station that is eager to move 
forward now to improve its service may be unable to find a willing 
negotiating partner. If there are at least three other full power 
stations in the market, however, a transitioning station would be 
assured of having at least some possibility of moving forward even 
if one or two of those stations was not interested in a partnership 
at the time.''
    \4\ The record shows that stations in rural, remote, and 
isolated areas most merit a waiver of the local simulcasting 
requirement.
    \5\ We also note that a review of available data by Commission 
staff suggests that limiting potential partners to only full power 
stations (i.e., excluding Class A TV stations) resulted in only a 
very slight increase in the number of full power stations that would 
be able to demonstrate ``no viable local simulcasting partner.''
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    14. We prefer the threshold approach of fewer than three potential 
partners to ONE Media's certification proposal, which would allow a 
station simply to certify ``that it has contacted all technically 
viable prospective partners and been rejected, or has not been able to 
make sufficient progress in negotiations, despite good faith efforts to 
do so.'' We find that our objective approach is more administratively 
efficient as it is readily demonstrable. Thus, we reject the 
certification proposal as an overly subjective standard that could 
provide opportunities for stations to overuse or abuse the waiver 
process. We note that the objective threshold approach also avoids 
having the Commission ``engage in qualitative market-by-market 
evaluations of simulcasting plans,'' which was a key concern of ONE 
Media. Given the difficulties associated with persuading another 
station in the DMA to relinquish its multicast capabilities to permit a 
competing station to deploy ATSC 3.0 by using the host station's 
facilities for its ATSC 1.0 simulcast, and the challenges associated 
with negotiating the terms of an agreement to do so, we believe the 
record demonstrates that it is unlikely for a station to be able to 
reach such an agreement with only one or two candidates available to do 
so. For the reasons stated above, we believe that this bright line test 
appropriately balances the likelihood of availability with the need to 
avoid a large number of subjective evaluations of how diligent the 
prospective ATSC 3.0 licensee has been in seeking out such 
arrangements.
    15. With respect to Class A TV stations, we will presume that a 
Class A TV station has ``no viable local simulcasting partner'' if it 
has fewer than three potential Class A TV simulcasting partners in the 
same DMA that: (1) Can provide overlap to its protected contour (47 CFR 
73.6010(c)); and (2) are not more than 30 miles from the reference 
coordinates of the transitioning station's existing antenna 
location.\6\ This is the same contour overlap standard that we apply in 
our rule specifying permissible simulcast partners for Class A stations 
seeking to provide ATSC 3.0 service. We recognize that many Class A TV 
stations will be able to satisfy this prong of our waiver standard, 
because few markets have three or more Class A stations. However, we 
find that it is appropriate to create a lower bar for this class of 
stations to make a showing under this prong as they likely face many of 
the same challenges in finding a suitable simulcasting partner as do 
LPTV stations.\7\ We will not consider LPTV/translator stations in our 
calculation of available 1.0 simulcast partners for Class A TV stations 
because they are secondary services that do not receive the same 
interference protection afforded to Class A TV stations. Nevertheless, 
Class A TV stations may choose to partner with LPTV/translator stations 
as a means to mitigate the harm to viewers, and we encourage Class A TV 
stations to do so.
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    \6\ In other words, if a station seeking a waiver to transition 
to ATSC 3.0 has only between zero and two stations in its market 
that can meet the Commission's local simulcasting coverage 
requirements in 47 CFR 73.6029(c), then the station will receive a 
presumption that it meets the ``no viable local simulcasting 
partner'' prong of the waiver standard. Commission staff estimates 
that, initially, about 71 percent of Class A stations will be able 
to meet this threshold.
    \7\ For example, like LPTV stations, Class A TV stations may not 
be attractive simulcast partners for full power stations because of 
their lower power and coverage area, as well as their frequent 
financial constraints. We note that, in any event, Class A TV 
stations would still need to comply with the second prong of our 
waiver standard.
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2. ``Reasonable Efforts'' To Preserve Service
    16. In addition to demonstrating that a station lacks a viable 
partner, successful waiver applicants must commit to take certain 
affirmative steps to satisfy the second prong of our waiver test, by 
demonstrating that it is making ``reasonable efforts'' to preserve 1.0 
service and minimize impact on viewers. It is critical that stations 
seeking a waiver of the simulcasting requirement can still achieve the 
purpose of our simulcasting rule--ensuring that viewers can continue to 
watch their channels during the transition period--through some 
alternate means, in order to serve viewers that can no longer receive 
the station over-the-air as a result of a station's conversion to ATSC 
3.0.
    17. The only alternative to local simulcasting raised or discussed 
in the record that is consistent with the purpose of the rule is for 
waiver applicants to provide free or low-cost ATSC 3.0 converter 
devices to affected over-the-air viewers. We believe that providing 
free or low-cost 3.0 converter devices could help ensure that viewers 
in a station's coverage area can continue to watch a station over-the-
air. Below, in an effort to provide greater predictability to 
prospective waiver applicants, we provide more detail about our 
expectations in this regard. We note, however, that we will consider 
other alternatives offered by waiver applicants on a case-by-case 
basis, provided the waiver applicant can demonstrate that such 
proposals would achieve the purpose of our local simulcasting rule.
    18. We will look favorably on a waiver applicant choosing to 
provide ATSC 3.0 converter devices at no cost or low cost to over-the-
air households located within its community of license which will no 
longer receive the station's ATSC 1.0 signal as a means to minimize the 
impact of not simulcasting on viewers. Although such equipment 
distribution is not a requirement to obtain a waiver, we find that this 
method provides one way to ensure that any disruption to viewers is 
minimized to the fullest extent possible. In order for us to evaluate 
this prong of our waiver standard, we expect waiver applicants will 
explain in detail their plans for providing converter devices to 
eligible viewers, including: (1) What types of devices they intend to 
provide; (2) the cost, if any, that eligible viewers will be required 
to pay in order to receive the device; (3) how the applicant intends to 
inform viewers of the need for, and availability of, devices; and (4) 
how viewers will be able to request and obtain the device. The Bureau 
will consider a waiver applicant's plan for providing ATSC 3.0 
converters to affected viewers on a case-by-case basis based on the 
unique circumstances confronting the applicant.\8\
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    \8\ We agree with PTV that ``[i]n situations where a station 
does simulcast ATSC 1.0 programming to part of its community, it 
should only be expected to provide free or low-cost converters to 
viewers unable to receive the ATSC 1.0 signal.'' In addition, we 
disagree with ATVA to the extent it contends that a waiver applicant 
must simulcast to part of its community of license in order to be 
eligible for a waiver. We do not require a waiver applicant to 
simulcast to part of its community of license, but we find that a 
waiver applicant that chooses to simulcast to part of its community 
of license will have mitigated the harm to those viewers in such 
area that receives the simulcast signal. For example, a waiver 
applicant may mitigate harm to viewers by simulcasting to part of 
its community of license and providing ATSC 3.0 converters to those 
areas not reached by the partial simulcast, or it may mitigate harm 
to viewers by providing ATSC 3.0 converters to its entire community 
of license. We note that ATVA does appear to agree that the harm to 
viewers can be mitigated by providing free or low-cost ATSC 3.0 
converter devices to viewers, which we expect waiver applicants will 
do to satisfy the second prong of our waiver test.
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    19. To provide greater predictability to applicants that chose to 
voluntarily provide ATSC 3.0 converters, the Bureau will look favorably 
on a plan in

[[Page 43482]]

which the waiver applicant would provide affected over-the-air 
households,\9\ upon request, with one ATSC 3.0 converter at no cost. To 
the extent waiver applicants choose to charge a low cost to consumers 
for devices, we will consider the particular circumstances surrounding 
this charge, as well as the amount of the charge, on a case-by-case 
basis. A waiver applicant choosing to provide ATSC 3.0 converter 
devices would be expected to agree to provide an ATSC 3.0 converter 
upon request to each affected over-the-air household for as long as it 
operates pursuant to the waiver. A waiver applicant choosing to provide 
ATSC 3.0 converter devices would also be expected to inform viewers how 
they can obtain an ATSC 3.0 converter from the station.\10\ We note 
that some waiver applicants choosing to provide ATSC 3.0 converter 
devices may opt to partner with equipment manufacturers, retailers, and 
even other broadcasters in their local markets in order to provide the 
free or low-cost ATSC 3.0 converters. While nothing precludes waiver 
applicants from partnering with third parties to establish their ATSC 
3.0 converter programs, we remind applicants that they remain 
ultimately responsible for complying with any commitments made as part 
of their waiver requests. Finally, we remind waiver applicants that a 
station that transitions directly to ATSC 3.0 must air daily Public 
Service Announcements (PSAs) or crawls every day for 30 days prior to 
the date that it will terminate ATSC 1.0 operations.\11\
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    \9\ ``Affected over-the-air households'' are households 
exclusively receiving television broadcast stations over the air 
with an antenna. This definition does not include households that 
subscribe to cable or satellite service.
    \10\ For example, as part of this notice, we expect stations 
choosing to provide ATSC 3.0 converter devices will provide 
information on their websites about how viewers can request and 
obtain any free or low-cost ATSC 3.0 converter devices that may be 
offered.
    \11\ Waiver applicants must provide all pertinent information to 
viewers in their PSAs or crawls, including information about how 
viewers can request and obtain any free or low-cost ATSC 3.0 
converter devices to the extent such devices are offered.
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    20. Broadcasters contend that, while the Commission should look 
favorably on waiver applicants that offer to provide free or low-cost 
ATSC 3.0 converters to viewers in their coverage area, the Commission 
should not require broadcasters to provide free or low-cost ATSC 3.0 
converters to viewers as a condition for a waiver of the local 
simulcasting requirements. NAB asserts that requiring waiver applicants 
to provide ATSC 3.0 converters ``would risk adding unreasonable costs'' 
on broadcasters, and ONE Media similarly contends that ``such a costly 
requirement might deter innovation in some markets without 
corresponding benefits.'' As stated above, we do not require waiver 
applicants to provide ATSC 3.0 converter devices and will consider 
alternative proposals that would achieve the purpose of the local 
simulcasting rule. There were, however, no such alternatives mentioned 
in the record. The Commission authorized the deployment of ATSC 3.0 
service in a manner that is voluntary for all stakeholders. We find it 
unreasonable for consumers to bear significant expense for these 
devices or to be left without service in the event devices are not 
readily available in the marketplace when a station wishes to deploy 
ATSC 3.0 service. Broadcasters seeking waiver of the simulcasting 
requirement must demonstrate that they have taken steps to minimize any 
disruption to consumers. Broadcasters have stated in the record that 
they expect 20 different television models from three manufacturers, to 
be available with built-in ATSC 3.0 tuners as well as other types of 
conversion equipment, such as adapters and gateway devices, by the end 
of 2020. To the extent this comes to pass, we expect broadcasters will 
have adequate access to ATSC 3.0 converter devices and other equipment 
so that they can provide such equipment to their viewers in support of 
any simulcasting waiver requests.\12\
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    \12\ We disagree with ONE Media's further assertion that we 
should not require a waiver applicant to provide ATSC 3.0 converter 
devices if it is ``in a market that is already well-penetrated with 
ATSC 3.0 devices and [has] arranged for all MVPDs to carry its 
signal.'' If most viewers in a market already have ATSC 3.0 devices, 
then it should not be overly burdensome for waiver applicants to 
provide ATSC 3.0 converters to the remaining few viewers in the 
market that do not. Further, carriage on all MVPDs in a market does 
not mean that all viewers would have access to the Next Gen TV 
station's signal unless they are a subscriber to MVPD service. 
Requiring that a viewer subscribe to an MVPD service in order to 
retain access to a station's free over-the-air signal would 
unreasonably shift the burden of what is supposed to be a voluntary 
transition onto viewers.
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    21. We reject NCTA's argument that it is premature for us to 
consider waivers of the local simulcasting requirement. Because our 
waiver standard targets relief to stations in rural, remote, and 
isolated areas and requires applicants to make ``reasonable efforts'' 
to preserve 1.0 service and minimize impact on viewers, we disagree 
with NCTA that our waiver standard will undermine the purpose of the 
local simulcasting rule.\13\ We find that viewers in small and rural 
markets should have an opportunity to enjoy the benefits of ATSC 3.0 
service as quickly as practicable and that stations lacking a simulcast 
partner that wish to innovate and invest in ATSC 3.0 technology should 
be afforded an opportunity to do so.
---------------------------------------------------------------------------

    \13\ We also find that our targeted waiver approach addresses 
ATVA's concerns that waivers will not be sufficiently narrow to 
address situations where stations cannot comply with the 
simulcasting rules.
---------------------------------------------------------------------------

    22. NTCA--The Rural Broadband Association (NTCA) also expressed 
concern that were the Commission to waive simulcasting requirements, 
broadcasters may try to enforce their mandatory carriage rights with 
respect to their ATSC 3.0 signals, potentially imposing significant 
costs on cable operators. We clarify that stations that receive a 
waiver of the local simulcasting rule are not allowed to assert 
mandatory carriage rights for their ATSC 3.0 signals. In the Next Gen 
TV Report and Order, the Commission stated that ``a Next Gen TV 
broadcaster will not be able to exercise mandatory carriage rights with 
respect to its 3.0 signal instead of its 1.0 signal, nor will it have 
mandatory carriage rights even if its 3.0 signal is the only signal 
being broadcast. In other words, under no circumstances will we 
recognize mandatory carriage rights for 3.0 signals while the 
Commission requires local simulcasting.'' We clarify that the reference 
to ``while the Commission requires local simulcasting'' was intended to 
refer to the time period during which the general simulcasting rule 
remains in effect and was not meant to confer ATSC 3.0 carriage rights 
to stations excused from the general rule. At this time, there are no 
mandatory carriage rights for ATSC 3.0 signals.
    23. In addition, NTCA expresses concern that stations which are 
granted waivers and elect retransmission consent can and likely would 
shift the costs of carrying ATSC 3.0 signals onto small and rural 
MVPDs. More specifically, NTCA avers that, because small and rural 
MVPDs generally rely on receiving broadcast signals over-the-air at 
their headend (as fiber is generally not an option), these MVPDs would 
have to upgrade their equipment to receive the signal of a 3.0 station 
that is not simulcasting in order to continue to carry the station. 
NTCA claims that, in such situations, broadcasters will have little 
incentive to share in the cost of such upgrades. NTCA maintains that, 
when considering a waiver request, the Bureau should consider the 
impact on MVPDs and their subscribers, particularly in situations in 
which such subscribers cannot receive any over-the-air broadcast 
signals and rely solely on MVPD service to receive a station. The 
Commission rejected suggestions that it should intervene in the 
retransmission

[[Page 43483]]

consent process vis-[agrave]-vis ATSC 3.0 signals in the Next Gen TV 
Report and Order, and in so doing, it decided that it was premature to 
consider arguments that Next Gen TV broadcasters could use the 
retransmission consent process to compel carriage of ATSC 3.0 signals 
before consumer demand and market circumstances warrant. Nevertheless, 
we expect waiver stations that are granted waivers of the simulcasting 
requirements will actively coordinate and work cooperatively and in 
good faith with all affected MVPDs to help ensure that MVPD subscribers 
can continue to watch the station.
3. No Additional Simulcast Exemptions
    24. We conclude that it is not necessary and would not serve the 
public interest to grant exemptions to any additional classes of 
stations at this time. In the Next Gen TV Further Notice, the 
Commission sought comment on whether to exempt NCE and/or Class A TV 
stations as a class from the local simulcasting requirement. Given the 
flexibility afforded by our waiver standard, we decline to give NCE and 
Class A TV stations a class-based exemption from our local simulcasting 
requirement, as we did for LPTV/translator stations.\14\
---------------------------------------------------------------------------

    \14\ In this regard, we agree with ATVA that our targeted waiver 
approach is more appropriate than a class-based exemption.
---------------------------------------------------------------------------

    25. As an initial matter, unlike LPTV/translator stations, NCE and 
Class A TV stations are considered primary under the Commission's 
rules. Primary television stations (primary stations) are treated 
differently from secondary television stations (secondary stations) in 
many respects under the rules. Among other things, primary stations are 
afforded interference protection from other services and, in contrast 
to secondary services like LPTV/translators, are not subject to 
displacement by other primary licensees.\15\ In addition, primary 
stations tend to carry programming more relied upon by viewers.\16\ 
Consequently, if we were to afford NCE, Class A TV, or any other class 
of primary station a blanket exemption of the local simulcasting rule, 
the potential adverse impact caused by service loss would be inherently 
greater than it is for secondary classes of stations. We therefore find 
it appropriate to afford NCE and Class A TV stations less flexibility 
than secondary stations with respect to local simulcasting obligations.
---------------------------------------------------------------------------

    \15\ We note that secondary stations also do not have principal 
community coverage obligations.
    \16\ For example, we note that Class A TV stations are required 
to broadcast a minimum of 18 hours per day and provide an average of 
at least three hours per week of locally-produced programming each 
quarter.
---------------------------------------------------------------------------

    26. In advocating for a blanket exemption from the local 
simulcasting rules, public television commenters emphasize that they 
are particularly likely to lack viable simulcasting partners because 
they often are not sited near other stations in the market. We find 
that our waiver standard, which is based on a proposal supported by 
PTV,\17\ adequately addresses this concern by providing that any 
station that lacks fewer than three potential partners presumptively 
satisfies the ``no viable local simulcasting partner'' prong of our 
waiver test. We find that our waiver standard will provide targeted 
relief to NCE stations in rural or other isolated areas without risking 
the loss of television service on which viewers currently rely. PTV 
also contends that the Public Broadcasting Act of 1967 (PBA) creates a 
statutory mandate for PTV stations ``to provide service to `all 
citizens of the United States,' particularly `unserved and underserved 
audiences' '' and, therefore, public television stations do not need a 
simulcasting requirement because the PBA will ensure that public 
television stations ``will only transition to the ATSC 3.0 standard 
after ensuring that their viewers will not be left behind.'' However, 
the sections of the PBA cited by PTV are not statutory mandates that 
are binding on public television stations, but rather a Congressional 
declaration of policy, and, in fact, we find that our waiver standard 
will buttress this Congressional statement of policy by ensuring that 
waivers are granted only in appropriate circumstances and that 
reasonable efforts will be made to prevent loss of public television 
service. We do not, however, find the Congressional statement of policy 
in the PBA to be a rationale for providing additional regulatory relief 
to NCE stations.\18\
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    \17\ Although PTV would prefer an exemption for public 
television stations, it indicated that it would support, in the 
alternative, a presumptive waiver for such stations.
    \18\ PTV also argues that ``public television stations have a 
strong financial incentive for ensuring that viewers are able to 
continue receiving their broadcast signals'' because ``public 
television stations rely on direct financial support from viewers.'' 
We also do not find this argument grounds for additional regulatory 
relief to public television stations. Our goal is to ensure viewers 
are protected during the transition to ATSC 3.0 service. We see no 
reason to treat viewers of full power public television stations 
differently from other full power stations.
---------------------------------------------------------------------------

    27. Likewise, we find the waiver approach is more appropriate for 
Class A TV stations than a class-based exemption. WatchTV states that 
the Commission should exempt Class A TV stations ``because most of the 
rationale behind the [simulcast requirement] does not apply to Class A 
(TV) stations.'' We acknowledge that Class A TV stations--unlike most 
other primary stations--are not generally carried by MVPDs, and thus 
their only way to access viewers is via over-the-air reception. 
Although we recognize they have incentives to maintain ATSC 1.0 service 
without a mandate, we disagree with WatchTV that these marketplace 
incentives justify a class-based exemption for Class A TV stations. By 
virtue of their status, Class A TV stations are required to provide 
locally-produced programming that is relied upon by viewers. We are 
reluctant to allow Class A TV stations to stop providing such service 
in ATSC 1.0 without a public interest showing. Thus, while most Class A 
TV waiver applicants will presumptively meet the first prong of the 
waiver standard, Class A TV waiver applicants will be required under 
the second prong of the waiver standard to minimize the impact on 
viewers, ensuring that viewers can maintain access to the locally-
produced programming offered by these stations.\19\
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    \19\ We note that WatchTV has indicated its ability to provide 
low-cost 3.0 devices to viewers, suggesting that the waiver standard 
would not prove too onerous for Class A stations. WatchTV 
``contemplates being able to acquire dongles for as little as $10 in 
quantity, so that a station may sell them for a nominal amount or 
even simply give them away to viewers as a promotion.''
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4. Waiver Processing
    28. We clarify that the Media Bureau has delegated authority to 
consider requests for waiver of the local simulcasting requirement and 
that waiver requests should be made when filing a Next Gen TV license 
application. Consistent with the timing for reviewing non-expedited 
applications seeking authorization to deploy ATSC 3.0, we expect the 
Bureau will process applications with waiver requests within 60 
business days after giving public notice of the waiver request.\20\ 
Some broadcaster commenters have requested much faster processing times 
for waiver requests, but such timeframes would provide staff 
insufficient time to verify that deviation from the established rule is 
warranted and in the public interest. So long as

[[Page 43484]]

information provided by waiver applicants is complete, we expect staff 
will be able to process the applications within the 60 business-day 
time period.
---------------------------------------------------------------------------

    \20\ As explained above, a non-expedited applicant refers to a 
Next Gen TV station whose application does not propose to provide 
ATSC 1.0 simulcast service to at least 95 percent of the predicted 
population within the station's original noise limited service 
contour (NLSC) and, thus, would not qualify for ``expedited 
processing'' for its application. A non-expedited applicant must 
provide a more robust public interest showing with its application 
and will be considered on a case-by-case basis.
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B. Temporary Use of Vacant Channels

    29. We decline to adopt new rules at this time to authorize full 
power broadcast licensees to use available or vacant channels in the 
television band for purposes of their voluntary ATSC 3.0 deployment. 
The Commission declined to authorize such use in the Next Gen TV Report 
and Order, but sought additional comment on this issue in the Next Gen 
TV Further Notice. In particular, the Commission sought comment on ONE 
Media's request that, in markets where such vacant channels are 
available, the Commission should allow full power broadcasters to use 
these channels as ``dedicated transition channels to ensure maximum 
continuity of service, just as it did during the transition from analog 
to digital.'' In support of this proposal, ONE Media and other 
broadcaster commenters argue that allowing Next Gen broadcasters to use 
vacant channels would facilitate the transition to ATSC 3.0 and 
``minimize consumer disruption and preserve service to viewers.'' They 
contend that television band spectrum is reserved for licensed 
broadcast use and that existing broadcasters should be given priority 
to use vacant channels as temporary transition channels in the 
band.\21\
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    \21\ In addition to priority over unlicensed uses, ONE Media 
advocates giving existing broadcasters priority over applicants for 
new television station licenses as well as over secondary users, 
including displacement applications of LPTV and TV translator 
stations.
---------------------------------------------------------------------------

    30. We find that it is premature to consider allowing broadcasters 
to use vacant channels as temporary transition channels to deploy ATSC 
3.0 service. At this time, deployment of ATSC 3.0 service is voluntary, 
and there is no certainty if or when it will replace ATSC 1.0 service; 
rather, it will be adopted by stakeholders based on marketplace 
considerations. For this reason, we reject ONE Media's comparison to 
the DTV transition in which a second channel was provided to most 
broadcasters in order to accomplish a mandatory transition from analog 
to digital service. We also agree with MVPD providers, wireless 
microphone interests, and proponents of white space devices that 
authorizing widespread use of vacant channels as dedicated transition 
channels would be inconsistent with the premise of the broadcasters' 
Next Gen TV Petition, which stated that local simulcasting would be the 
``core of the voluntary, market-driven implementation of ATSC 3.0'' and 
that no additional spectrum would be needed for the voluntary 
deployment of ATSC 3.0 service.\22\ Further, the fact that no 
additional spectrum would be required for the voluntary use of ATSC 3.0 
was a key consideration in the Next Gen TV Report and Order. Allowing 
widespread use of vacant channels as transition channels would likely 
discourage reliance on local simulcasting arrangements, which are 
intended to accomplish the voluntary deployment of ATSC 3.0 service in 
a spectrally efficient manner.
---------------------------------------------------------------------------

    \22\ The Next Gen TV Petition stated that it ``does not ask the 
Commission to give broadcasters additional spectrum to roll out Next 
Generation TV and does not seek any changes to the current DTV 
standard. Instead, broadcasters will use market-based solutions to 
introduce this enhanced capability on existing spectrum while not 
disenfranchising viewers using ATSC 1.0 equipment, and consumer 
electronics manufacturers will implement the new standard in 
response to market demands rather than regulatory mandates.''
---------------------------------------------------------------------------

    31. Moreover, any benefits of allowing broadcasters to use vacant 
channels as temporary transition channels appear outweighed by the 
costs to other stakeholders. Broadcasters maintain that vacant channel 
use may be particularly helpful to stations in rural, remote, and 
isolated areas. However, such broadcasters already have significant 
flexibility in complying with our local simulcasting rules by virtue of 
the waiver standard. Further, we are skeptical that rural, remote, and 
isolated broadcasters would even want to incur the costs of 
constructing and operating a second facility on a vacant channel. 
Instead, such broadcasters may find partnering with LPTV/translator 
stations, which are exempt from the simulcasting requirement, to be a 
more affordable and practical option for their initial deployment of 
ATSC 3.0 service.
    32. In addition, we are not persuaded that the benefits of allowing 
broadcasters to use vacant channels as temporary transition channels 
outweigh the potential costs and harms to other stakeholders that 
operate in the band. Authorizing widespread use of vacant channels by 
broadcasters could have a significant adverse impact on these other 
stakeholders. First, permitting vacant channel use at this time, even 
for only 3.0 service, could have negative effects on the incentive 
auction reorganization of spectrum (repacking). The resources needed to 
use vacant channels for such purposes could strain resources needed to 
support the construction of facilities on channels assigned in the 
post-incentive auction repacking, including transitioning stations and 
stations moving from interim to permanent facilities post-transition. 
Second, permitting widespread vacant channel use could adversely impact 
LPTV and TV translator stations, particularly those displaced by the 
post-Incentive Auction repacking process that are currently receiving 
federal funds to modify or construct new facilities on channels for 
which they hold construction permits. Although we recognize that full 
power stations are primary and LPTV and TV translator stations are not, 
during this repacking transition we strive to be good stewards in 
overseeing efficient use of federal reimbursement funds. By opting not 
to allow full power vacant channel use at this time, we reduce the 
potential of inefficiently allocated reimbursement expenses to 
relocating LPTV stations by further displacing those stations already 
receiving federal funds. Finally, permitting widespread vacant channel 
use for ATSC 1.0 simulcasting could impose costs on an MVPD that may 
need to receive a signal from a new ATSC 1.0 facility that it does not 
currently carry. To the extent broadcasters were to move from one 
vacant channel to another, MVPDs could incur such expenses multiple 
times with respect to a single station.\23\
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    \23\ We recognize that parties supporting use of vacant channels 
for unlicensed white space operations and wireless microphone 
operations also expressed concern about the potential adverse impact 
on such uses. In response, broadcasters contend that white space use 
should yield to broadcast operations in the television band. Because 
we decline on other grounds to adopt the proposal to allow full 
power vacant channel use, we do not address that issue here.
---------------------------------------------------------------------------

    33. Accordingly, we decline to allow the use of vacant channels for 
the ATSC 3.0 transition at this time. If warranted by market conditions 
in the future, we may revisit the need for permitting broadcasters to 
use vacant channels as transition channels.

C. ``Significantly Viewed'' Status of Next Gen TV Stations

    34. We adopt our tentative conclusion that the significantly viewed 
status of a Next Gen TV station should not change if it moves its ATSC 
1.0 simulcast channel to a temporary host facility. All commenters on 
this issue support this conclusion. Accordingly, a commercial 
television station that relocates its ATSC 1.0 simulcast channel cannot 
seek to gain significantly viewed status in new communities or counties 
and such station cannot lose significantly viewed status in communities 
or counties for which it qualified prior to the move of its ATSC 1.0 
simulcast channel.
    35. Significantly viewed stations are commercial television 
stations that the Commission has determined have

[[Page 43485]]

``significant'' over-the-air (i.e., non-cable and non-satellite) 
viewing and are thus treated as local stations in certain respects with 
regard to a particular community in another television market. 
Significantly viewed status allows the significantly viewed station to 
be (1) carried by a satellite carrier in such community in the other 
market; (2) carried in such community by cable and satellite operators 
at the reduced copyright payment applicable to local (in-market) 
stations; and (3) exempt in such community from another station's 
assertion of its network non-duplication or syndicated exclusivity 
rights. A station that varies its signal strength or changes its 
location as a result of moving its ATSC 1.0 signal to a simulcast 
partner may raise the question of how this change affects its status as 
``significantly viewed'' in a certain community or county under 47 CFR 
76.5(i) and 76.54.
    36. We agree with MVPDs and broadcasters that we should maintain 
the status quo in the significantly viewed context with respect to ATSC 
1.0 simulcast signals and thereby avoid disruptions to the carriage 
obligations of MVPDs and the carriage rights of broadcasters, and note 
that no commenter opposes this approach. Any changes in significantly 
viewed status due to local simulcasting would be temporary, and our 
approach will avoid disruptions to cable and satellite television 
viewers who have come to rely on such signals. This approach will not 
impose added mandatory carriage burdens on MVPDs and avoids burdening 
MVPDs with numerous changes to their carriage obligations. We note that 
significantly viewed status does not confer mandatory carriage rights 
to the station, but rather only allows carriage of the station via 
retransmission consent. Thus, maintaining the status quo with respect 
to eligibility for significantly viewed carriage presents no mandatory 
carriage burdens on MVPDs. We also conclude that expansion of 
eligibility for significantly viewed carriage due to the relocation of 
the ATSC 1.0 simulcast signal would not be consistent with the purpose 
of local simulcasting, which is intended to serve the goal of 
maintaining existing television service to viewers within the station's 
original coverage area, not expanding service into new areas.
    37. Although our approach here differs from how we addressed this 
issue in the channel sharing context, we find that it is appropriate to 
treat significantly viewed status differently in these two contexts. In 
the Incentive Auction Report and Order, the Commission found that 
because significantly viewed status is largely a function of signal 
availability, a station moving to a new channel should lose its status 
at the relinquished location. But unlike in the channel sharing 
context, Next Gen TV broadcasters are not relinquishing their original 
channel. While they are relocating their ATSC 1.0 signal to a simulcast 
partner, they will continue to operate on their existing channel in 
ATSC 3.0 and will ultimately return to operating solely on their 
existing channel when the local simulcasting period ends. Moreover, a 
Next Gen TV broadcaster will continue to reach the communities or 
counties in which it is significantly viewed with an ATSC 3.0 over-the-
air signal during the period in which it is simulcasting.

IV. Order On Reconsideration

    38. In this Order on Reconsideration, we dismiss and, on 
alternative and independent grounds, deny the NCTA and ATVA petitions 
for reconsideration.\24\ NCTA and ATVA seek reconsideration of various 
aspects of the local simulcasting rules, as well as the Commission's 
decisions concerning voluntary carriage of ATSC 3.0 signals through 
retransmission consent, patent licensing, and the sunset of the A/322 
standard.\25\ All of the requests raised in the petitions have been 
considered and rejected already by the Commission in the underlying 
order. As discussed below, the NCTA and ATVA petitions repeat issues 
that commenters, including NCTA and ATVA, raised earlier in the 
proceeding, and that we fully considered and rejected in the Next Gen 
TV Report and Order. Further, we disagree that these petitions raise 
any errors or omissions that warrant reconsideration. (The Bureau has 
the authority to dismiss petitions for reconsideration that ``fail to 
identify any material error, omission, or reason warranting 
reconsideration,'', or which ``rely on arguments that have been fully 
considered and rejected by the Commission within the same proceeding.'' 
Because we also address the petitions on the merits, we have no 
occasion to rely on that delegation of authority here.)
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    \24\ Pursuant to Commission policy, petitions for 
reconsideration are not to be used merely to reargue points 
previously advanced and rejected.
    \25\ Specifically, ATVA seeks reconsideration of three issues, 
including: (1) The Commission's rejection of ATVA's proposal to 
require separate negotiations for first-time carriage of ATSC 3.0 
signals; (2) the Commission's exemption from the simulcasting 
requirement for low power and TV translator stations; and (3) the 
Commission's decision not to require stations to provide prior 
notice to viewers and MVPDs before changing their signal formats on 
their ATSC 1.0 simulcasts. NCTA seeks reconsideration of five 
issues, including: (1) The Commission's decision to sunset after 
five years the ``substantially similar'' requirement; (2) the 
Commission's decision to sunset after five years the requirement 
that a Next Gen TV broadcaster's primary video programming stream 
adheres to the ATSC A/322 standard; (3) the Commission's decision 
not to require Next Gen TV broadcasters to simulcast ATSC 1.0 
signals in high definition (HD) format to the extent they are 
currently broadcasting such signals in HD; (4) the Commission's 
decision not to prohibit broadcasters from using retransmission 
consent negotiations to obtain carriage of their ATSC 3.0 signals by 
withholding the ATSC 1.0 signal; and (5) the Commission's decision 
not to require that patents relevant to the ATSC 3.0 standard must 
be licensed on a reasonable and non-discriminatory (RAND) basis.
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A. Retention of Sunset Dates

1. Sunset of ``Substantially Similar'' Requirement
    39. We dismiss and, on alternative and independent grounds, deny 
NCTA's request to reconsider the five-year sunset of the 
``substantially similar'' requirement. While we retain the July 17, 
2023 sunset date for this rule, approximately one year before the 
requirement is set to expire, we will seek comment on whether it should 
be extended based on marketplace conditions at that time.\26\
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    \26\ We note that, while the Commission stated that the 
``substantially similar'' requirement would expire five years after 
its effective date, the Commission had inadvertently omitted to 
codify the sunset date in the rule. We take this opportunity to 
correct this oversight and amend our rules to reflect the sunset 
date.
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    40. In the Next Gen TV Report and Order, the Commission required 
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. As the Commission 
explained, the programming must be the same, except for programming 
features that are based on the enhanced capabilities of ATSC 3.0, 
advertisements, and promotions for upcoming programs. The Commission 
stated that this approach ``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 sunset five years from its effective date absent 
further action by the Commission to extend it. 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

[[Page 43486]]

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 July 17, 2018, so it will expire on July 17, 
2023, unless extended by the Commission.
    41. In its petition, NCTA repeats its and other commenters' earlier 
opposition in this proceeding to an automatic sunset of the 
substantially similar requirement. NCTA contends that the Commission's 
decision to sunset the substantially similar requirement was 
``arbitrary'' and ``has no basis in the record.'' \27\ NCTA further 
asserts that, ``[g]iven the current state of the marketplace, the 
rational policy would be for the Commission to monitor the roll-out of 
ATSC 3.0 and maintain the substantially similar requirement until the 
use of ATSC 3.0 is further along'' before ``determin[ing] the 
appropriate sunset.''
---------------------------------------------------------------------------

    \27\ NCTA claims in its reply to oppositions that ``the 
Commission did not seek comment on the notion that the 
[substantially similar] requirement would sunset five years after 
its adoption.'' In the Next Gen TV NPRM, the Commission sought 
comment on whether ``a `simulcast' means a stream with identical 
content to the video programming aired on the originating station's 
primary ATSC 3.0 stream'' and further asked ``[i]f the simulcast 
content will not be identical to the originating station's primary 
video programming stream, . . . explain the reasons for any 
deviations in content and/or format (i.e., high definition (HD) 
versus SD) and the impact of such deviations on television viewers 
and the regulatory implications.'' In response, broadcasters opposed 
an identical content requirement. Persuaded by broadcasters' 
comments, the Commission opted against an identical content 
requirement and instead established the ``substantially similar'' 
requirement and determined that such requirement appeared necessary 
only in the early stages of ATSC 3.0 deployment. We find that the 
NPRM provided adequate notice that the Commission was considering 
whether (or not) to require identical content and the length of time 
any such requirement might be necessary.
---------------------------------------------------------------------------

    42. The Commission fully considered this issue in the Next Gen TV 
Report and Order and decided to establish a sunset for the 
substantially similar requirement. Because NCTA repeats arguments that 
have already been considered, we dismiss NCTA's Petition on this issue. 
On alternative and independent grounds, we deny NCTA's Petition on this 
issue because we disagree that the Commission erred. We continue to 
believe a sunset date is appropriate and, thus, affirm the decision in 
the Next Gen TV Report and Order. We reject NCTA's request that we 
should either delay establishing a sunset for the substantially similar 
requirement or retain it indefinitely. As explained in the Next Gen TV 
Report and Order, without an expiration date, this rule could become 
stale and impede the very Next Gen TV programming innovations that we 
seek to promote by authorizing the deployment of ATSC 3.0. In any 
event, we note that only the ``substantially similar'' requirement will 
expire and not the requirement to broadcast in 1.0, so viewers will not 
lose access to ATSC 1.0 signals. Thus, contrary to NCTA's suggestion, 
consumers will not need to invest in 3.0 technology before they are 
ready. We also agree with Pearl TV that broadcasters understand their 
communities and have strong market incentives to be responsive to their 
needs, both to those viewers seeking the enhancements of ATSC 3.0 
service and those choosing to continue watching in ATSC 1.0 format. 
Therefore, we expect broadcasters will use any additional flexibility 
resulting from the rule's eventual sunset to offer innovative 
programming on their ATSC 3.0 signals, rather than to ``diminish[] the 
quality of the content on their ATSC 1.0 simulcast signal,'' as NCTA 
fears.
    43. While we acknowledge that there have been limited marketplace 
developments since the Next Gen TV Report and Order was released in 
November 2017, given the dynamic nature of the broadcast and consumer 
electronics industries, we find a better approach is to defer a 
decision regarding any extension until the year prior to the current 
sunset. We find this approach to be particularly sound given that it 
accounts for unanticipated events, such as the novel coronavirus 
(COVID-19), whose impact we are unable to discern at this time. We 
note, prior to the recent pandemic, the industry expected that many 
stations would begin broadcasting in ATSC 3.0 this year. According to 
NAB and Pearl TV, broadcasters intended to launch ATSC 3.0 service in 
61 markets in 2020. It is not clear whether these plans remain 
intact.\28\ Moreover, although consumer reception equipment is not 
currently commercially available, the industry has represented that 
such equipment will be available to consumers in the fourth quarter of 
this year. Again, we do not know whether this target holds true today. 
Thus, we will continue to monitor the ATSC 3.0 marketplace and, when we 
get closer to the sunset date, we will initiate a proceeding to 
determine whether it is necessary to extend the substantially similar 
requirement.
---------------------------------------------------------------------------

    \28\ That is, we do not know the extent to which the pandemic 
has affected broadcasters' plans for ATSC 3.0 deployment.
---------------------------------------------------------------------------

2. ATSC A/322 Standard Sunset
    44. We dismiss and, on alternative and independent grounds, deny 
NCTA's request to reconsider the five-year sunset of the requirement 
that broadcasters' primary free over-the-air Next Gen TV video 
programming streams adhere to the ATSC A/322 standard.\29\ While we 
retain the March 6, 2023, sunset for this rule, approximately one year 
before the rule is set to expire we will seek comment on whether it 
should be extended based on marketplace conditions at that time.\30\
---------------------------------------------------------------------------

    \29\ NCTA contends in its petition that the Commission's 
requirement to comply with the A/322 standard ``arbitrarily lifts . 
. . after five years.'' Moreover, NCTA's argument that there have 
been limited marketplace developments since 2017 applies equally to 
the A/322 standard sunset.
    \30\ The amendments to 47 CFR 73.682(f), including the 
incorporation of the A/322 standard, took effect on March 5, 2018, 
i.e., 30 days after the rule's publication in the Federal Register. 
We note that the rule incorrectly reflects a sunset date of February 
2, 2023, instead of March 6, 2023, which date is five years from the 
effective date of the rule (pushed to the next business day). We 
take this opportunity to correct this mistake and amend 47 CFR 
73.682(f) to reflect the true sunset date.
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    45. In the Next Gen TV Report and Order, the Commission 
incorporated two parts of the ATSC 3.0 ``physical layer'' standard into 
the rules: (1) ATSC A/321:2016 ``System Discovery & Signaling'' (A/
321), which is the standard used to communicate the RF signal type that 
the ATSC 3.0 signal will use, and (2) A/322:2017 ``Physical Layer 
Protocol'' (A/322), which is the standard that defines the waveforms 
that ATSC 3.0 signals may take. With respect to the A/322 standard, the 
Commission applied the standard only to a Next Gen TV station's primary 
free over-the-air video programming stream and incorporated it by 
reference into the rules for a period of five years, unless the 
Commission extends the requirement via rulemaking. The Commission 
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.'' In 
establishing a sunset for A/322 compliance, the Commission sought to 
``balance [its] goals of protecting consumers while promoting 
innovation.''
    46. In its petition, NCTA repeats its and other commenters' earlier 
argument that we should incorporate the A/322 standard into our rules 
without a sunset date. NCTA claimed that the Commission's decision to 
sunset

[[Page 43487]]

compliance with the A/322 standard was arbitrary. NCTA restated the 
Commission's recognition that ``device manufacturers and MVPDs may not 
be able to reliably predict what signal modulation a broadcast is using 
unless broadcasters are required to follow A/322'' and asserted that 
the Commission ``offer[ed] no compelling reason to believe that the 
need for that certainty will vanish in 2023.''
    47. The Commission fully considered this issue in the Next Gen TV 
Report and Order and decided to require compliance with the A/322 
standard only for a transitional period, after which the requirement 
will sunset absent Commission action to extend it. Because NCTA repeats 
arguments that have already been considered, we dismiss NCTA's Petition 
on this issue. On alternative and independent grounds, we deny NCTA's 
Petition on this issue because we disagree that the Commission erred. 
Thus, we affirm the decision in the Next Gen TV Report and Order. We 
reject NCTA's claim that the Commission's decision to sunset compliance 
with the A/322 standard was arbitrary. In establishing a sunset for A/
322 compliance, the Commission sought to balance the competing goals 
raised in the record of providing certainty to device manufacturers, 
MVPDs, and consumers while promoting broadcaster innovation.\31\ The 
Commission determined five years struck the right balance at the time 
to ensure stations had ``a reasonable opportunity to implement Next Gen 
TV broadcasting'' before the A/322 requirement sunsets. We expect that 
once broadcasters begin to implement the ATSC 3.0 standard in 
compliance with A/322, it will establish a measure of certainty for 
device manufacturers and MVPDs. Although device manufacturers, MVPDs, 
and consumers may want continued certainty, we think at some point the 
rule must sunset to allow for broadcast innovation outside of the A/322 
standard. Even when the rule sunsets, as a practical matter, 
broadcasters will have to coordinate with device manufacturers and 
MVPDs if they want to deviate from A/322 to ensure their broadcasts can 
be received and viewed on devices and MVPD systems. We also note that 
broadcasters have no incentive to change their implementation of ATSC 
3.0 in a way that would render existing consumer equipment obsolete. 
Finally, consistent with our decision above concerning the 
``substantially similar'' sunset, we will wait to consider the state of 
the marketplace a year before the rule sunsets to determine whether 
there is any need to extend it.
---------------------------------------------------------------------------

    \31\ The Next Gen TV Report and Order explained the Commission's 
intent to ``establish a period of certainty for manufacturers, 
MVPDs, and consumers that will prevent broadcasting standards from 
splintering and will speed the overall adoption of ATSC 3.0.''
---------------------------------------------------------------------------

B. High Definition (HD) Service and Notice to Viewers

    48. We dismiss and, on alternative and independent grounds, deny 
NCTA's request to require broadcasters to simulcast ATSC 1.0 signals in 
high definition (HD) format to the extent they are currently 
broadcasting such signals in HD. We also dismiss and, on alternative 
and independent grounds, deny ATVA's request to require a station to 
provide prior notice to viewers and MVPDs before changing its signal 
format or picture quality.
    49. In its petition, NCTA repeats its earlier request in this 
proceeding to require Next Gen TV broadcasters that are currently 
broadcasting in HD to continue to provide HD service on 1.0 simulcast 
signals. NCTA asserts that the Commission erred in not doing so and by 
instead relying on broadcasters' marketplace incentives.\32\ 
Specifically, NCTA contends that the Commission's acknowledgement in 
the Next Gen TV Report and Order that ``stations may have less capacity 
for HD programming'' because of local simulcasting partnerships 
``undermines [the Commission's] conclusion that a rule is unnecessary 
because broadcasters have `market-based incentives' to continue to 
provide HD programming on the ATSC 1.0 signal.'' NCTA further contends 
that the Next Gen TV Report and Order ``does not acknowledge the harms 
to consumers identified in [NCTA's] comments, much less explain why 
they are outweighed by a broadcaster's voluntary experimentation with 
ATSC 3.0.'' \33\
---------------------------------------------------------------------------

    \32\ NCTA states that ``[b]ecause a high definition (HD) ATSC 
1.0 signal consumes more bandwidth than a standard definition ATSC 
1.0 signal, there is reason to fear that broadcasters launching an 
ATSC 3.0 signal will have strong incentives to degrade their over-
the-air HD ATSC 1.0 signal so that more streams can be squeezed into 
another 6 MHz channel.''
    \33\ NCTA asserts that ``if a broadcaster has voluntarily chosen 
to transmit its 1.0 signal in HD, it should not be allowed to 
downgrade that signal to SD at least in the initial phases of 
launching a 3.0 signal'' because ``[s]uch downgrading would deprive 
viewers of the programming to which they have become accustomed and 
would force them and MVPDs to incur costs to recapture the HD 
quality that they have come to expect.''
---------------------------------------------------------------------------

    50. The Commission fully considered this issue in the Next Gen TV 
Report and Order and decided not to require Next Gen TV broadcasters 
that are currently broadcasting in HD to continue to provide HD service 
on 1.0 simulcast signals. Because NCTA repeats arguments that have 
already been considered, we dismiss NCTA's Petition on this issue. On 
alternative and independent grounds, we deny NCTA's Petition on this 
issue because we disagree that the Commission erred. Thus, we affirm 
the decision in the Next Gen TV Report and Order. As explained in the 
Next Gen TV Report and Order, the Commission's existing rules do not 
require broadcasters to provide their signals in HD and they can change 
format at any time.\34\ We acknowledge that a broadcaster seeking to 
meet its community's demands for ATSC 3.0 service (including 4K or 
Ultra High Definition format) may choose to deploy ATSC 3.0 service, 
even if that means it will be able to air an ATSC 1.0 simulcast signal 
only in SD format. We also recognize that this may mean that consumers 
who want to continue to receive HD programming will need to purchase a 
3.0 converter device. However, we find such decisions would be a 
response to competitive marketplace conditions, not contrary to them. 
We agree with NAB that ``broadcasters have strong market incentives to 
maintain HD service to the maximum extent possible.'' Broadcasters that 
choose to deploy 3.0 service even though they will only be able to 
simulcast an ATSC 1.0 signal in SD will likely be doing so to meet 
consumer demands for 4K/UHD service and other enhancements, and we 
believe that broadcasters should have the flexibility to innovate and 
respond to marketplace demands.\35\ We agree with broadcasters that 
mandating HD format for 1.0 simulcasts could hamper the deployment of 
3.0 service to communities in which there is significant market demand 
for such service. We thus decline to substitute our own judgment for 
that of local television stations that best know their communities' 
needs. Accordingly, we remain unpersuaded that new rules are needed to 
mandate HD service on simulcasts.
---------------------------------------------------------------------------

    \34\ Although NCTA seeks the status quo for broadcasters 
currently broadcasting in HD, the status quo includes the right to 
change format at any time.
    \35\ As Pearl TV explains, ``[l]ocal stations will consider the 
types of technology their viewers have and their viewers' appetite 
for various options as they weigh the trade-offs of different 
deployment approaches.''
---------------------------------------------------------------------------

    51. In its Petition, ATVA asks the Commission to reconsider its 
decision not to require stations to provide prior notice to viewers and 
MVPDs before changing their signal formats on their

[[Page 43488]]

1.0 simulcasts.\36\ The Commission fully considered this issue in the 
Next Gen TV Report and Order and decided not to require stations to 
provide such notice. Because ATVA repeats arguments that have already 
been considered, we dismiss ATVA's Petition on this issue. We also 
reject ATVA's argument that its request involves a new fact that 
justifies reconsideration. ATVA contends that the Commission's decision 
not to require prior notice in this regard ``constitutes a `material 
fact' that was `not known' to ATVA until the Order was released'' 
because the draft order the Commission circulated a few weeks before it 
adopted the final Order would have required broadcasters to provide 
such notice. We disagree. A draft order the Commission circulates 
before adopting a final order is not binding. We agree with NAB that 
``ATVA's suggestion that any changes from the draft to the final order 
serve as a basis for reconsideration would be an unworkable standard 
that would greatly burden the Commission and its staff.'' Given that 
another commenter was able to make the argument in favor of a notice 
requirement for HD service, we see no reason ATVA could not have done 
so as well.
---------------------------------------------------------------------------

    \36\ We note that this issue was raised by another commenter in 
this proceeding.
---------------------------------------------------------------------------

    52. On alternative and independent grounds, we deny ATVA's Petition 
on this issue and affirm our findings on this issue in the Next Gen TV 
Report and Order. As discussed in the Next Gen TV Report and Order, 
broadcasters may have legitimate market incentives to deploy 3.0 
service even though they will only be able to simulcast in SD. In these 
situations, viewers will continue to receive 1.0 service in SD, as is 
required by our rules, so we see no need for notice requirements like 
those mandated for stations that relocate their ATSC 1.0 signals. 
Instead, we will rely on broadcasters' market incentives to inform 
viewers how they can receive Next Gen TV service enhancements.\37\ To 
the extent MVPDs are concerned, there is nothing to prevent them from 
providing notice to their subscribers that a station's channel is no 
longer being provided in HD as a result of the broadcasters' decision 
to deploy 3.0 service.
---------------------------------------------------------------------------

    \37\ We note that there is nothing in our rules that prohibits 
stations changing their signal format without notice. Indeed, ATVA 
concedes as much. ATVA contends that the ATSC 3.0 transition 
represents a special case in which broadcasters may have an 
incentive to degrade their signals. We are not persuaded and see no 
reliable record evidence to suggest that broadcasters are likely to 
change signal formats in the manner that ATVA suggests.
---------------------------------------------------------------------------

C. LPTV/Translator Exemption

    53. We dismiss and, on alternative and independent grounds deny, 
ATVA's request that the Commission reconsider its decision in the Next 
Gen TV Report and Order to exempt LPTV and TV translator (LPTV/
translator) stations from the local simulcasting requirement.
    54. In its Petition, ATVA repeats its earlier opposition to 
permitting LPTV/translator stations to transition directly to ATSC 3.0 
and contends that this decision constituted ``material error.'' (ATVA 
argues that ``allowing low power stations to flash-cut causes exactly 
the same harm as does allowing full power stations to flash cut--
especially since a large and increasing number of stations maintain 
major-network affiliations.'') The Commission fully considered this 
issue in the Next Gen TV Report and Order and, based on the record, 
decided to exempt such stations from the local simulcasting 
requirement. Because ATVA repeats arguments that have already been 
considered, we dismiss ATVA's Petition on this issue. On alternative 
and independent grounds, we deny ATVA's Petition on this issue because 
we disagree that the Commission erred in this regard and affirm the 
decision in the Next Gen TV Report and Order. In addition, we reject 
ATVA's contention that the Commission should adopt a waiver approach 
for LPTV/translator stations instead of maintaining a blanket 
exemption. We continue to believe that a class-based exemption from the 
simulcast requirement for LPTV/translator stations is more appropriate 
in this situation than the waiver approach suggested by ATVA. As ATVA 
concedes, a waiver process for LPTV/translator stations would be an 
inefficient and burdensome means of providing widespread relief to 
LPTV/translator stations. Such a process would slow deployment of 3.0 
service to the public, and, ultimately, is unnecessary because we can 
rely on market incentives to protect viewers against significant LPTV/
translator service loss.
    55. In any case, ATVA appears to be primarily concerned with 
precluding direct transitions by LPTV/translator stations that are 
affiliated with a Big-4 network (i.e., ABC, CBS, FOX, NBC).\38\ 
According to staff review of S&P data on February 19, 2020, only about 
2.5 percent of LPTV stations are affiliated with a Big-4 network.\39\ 
We agree with LPTV/translator commenters that requiring thousands of 
simulcast waiver requests because of a limited number of Big-4 
affiliated LPTV/translator stations that might choose to transition 
directly to ATSC 3.0 would be inefficient and unnecessarily burdensome 
for both LPTV/translator stations as a whole and Commission staff who 
would need to process potentially thousands of such requests. Moreover, 
even if some of these Big-4 network affiliated stations have greater 
viewership and resources than unaffiliated LPTV/translator stations, it 
still would be the exception rather than the rule that an LPTV/
translator station would both be able to find a suitable simulcast 
partner and to afford simulcasting.\40\ We agree with LPTV/translator 
commenters that LPTV/translator stations affiliated with a Big-4 
network will have strong market incentives to maintain 1.0 service 
because of their reliance on advertising revenues. Consequently, we 
agree with the LPTV/translator groups that ``[o]ut of necessity these 
few LPTV/translator stations [affiliated with top four networks] will 
simulcast voluntarily if and when they transition to ATSC 3.0,'' a 
consideration that lends further support to our prior conclusion that a 
class-based exemption for LPTV/translator stations is more appropriate 
than a waiver process.
---------------------------------------------------------------------------

    \38\ ATVA acknowledges that a waiver process would ``increase 
costs and burdens on low power broadcasters at least to some 
extent'' and therefore states that it would ``not object to 
reasonable steps to relieve such burdens for LPTV/translator 
stations unaffiliated with a Big Four network, such as presumptions 
in favor of waivers in certain cases, shot-clocks, and paperwork 
simplification.'' We note that ATVA previously argued in its reply 
comments and an ex parte to the Next Gen TV NPRM that it took ``no 
position'' on whether the simulcast requirement should apply to an 
LPTV/translator or Class A TV station, if such station ``is not 
carried by any MVPD, is not required to be carried by any MVPD under 
the must-carry statute, and remains unaffiliated with any network.''
    \39\ According to staff review of S&P data on February 19, 2020, 
about 46 of the 1,892 LPTV stations are affiliated with a Big-4 
network. We note that this data is consistent with the data provided 
by ATVA, which stated, based on its review of 2017 SNL Kagan data, 
that about 55 LPTV and Class A stations were affiliated with a Big-4 
network in September 2017. (As we do not exempt Class A stations, we 
did not include the 14 of 387 Class A stations affiliated with a 
Big-4 network in our total.) We note that the Next Gen TV Report and 
Order incorrectly indicated that there were 258 LPTV stations in 
September 2017. In fact, there were 1,964 LPTV stations in September 
2017.
    \40\ This is because LPTV/translator stations generally serve 
rural, remote, and isolated areas that are not served by other 
stations. Indeed, as PTV points out, such is the nature and purpose 
of TV translators.
---------------------------------------------------------------------------

    56. Finally, we also agree with LPTV/translator commenters that 
LPTV/translator stations would better serve their role as initial 3.0 
hosts for full power stations if they were immediately available 
through an exemption, rather than having to request a waiver prior to 
becoming available to serve as 3.0 hosts. Indeed, Alliance points out 
that the

[[Page 43489]]

costs and uncertainty of a waiver process would not only slow 3.0 
deployment, but also potentially dissuade LPTV/translator stations from 
seeking such relief.

D. Retransmission Consent Issues

    57. We dismiss and, on alternative and independent grounds deny, 
the requests by ATVA and NCTA to adopt new rules related to the 
voluntary carriage of 3.0 signals through retransmission consent. 
Specifically, ATVA repeats its request to require separate negotiations 
for first-time carriage of ATSC 3.0 signals, and NCTA repeats its 
request to prohibit broadcasters from using retransmission consent 
negotiations to obtain carriage of their ATSC 3.0 signals by 
withholding the ATSC 1.0 signal.
    58. ATVA and NCTA merely repeat their earlier concerns that Next 
Gen TV broadcasters could use the retransmission consent process to 
compel carriage of 3.0 signals before consumer demand and market 
circumstances warrant. ATVA contends that it was a ``material error'' 
for the Commission not to require separate negotiations for first-time 
MVPD carriage of ATSC 3.0 signals. NCTA contends that it ``makes no 
sense'' for the Commission to have concluded that it is premature to 
address any issues that may arise with respect to the voluntary 
carriage of ATSC 3.0 signals, saying MVPDs are at risk now of having to 
``prematurely invest in ATSC 3.0 technology.'' ATVA also disagrees with 
the Commission that it is premature to address such issues, citing some 
examples it previously provided in the proceeding where broadcasters 
have already began to seek bundling arrangements in contract 
negotiations.
    59. The Commission fully considered this issue in the Next Gen TV 
Report and Order and declined to adopt new rules related to the 
voluntary carriage of 3.0 signals through retransmission consent. We 
agree with NAB that ``NCTA and ATVA offer nothing more in their 
petitions than a summary of their previous arguments.'' Because NCTA 
and ATVA repeat arguments that have already been considered, we dismiss 
their Petitions on this issue. On alternative and independent grounds, 
we deny the NCTA and ATVA Petitions on this issue because we disagree 
that the Commission erred in this regard and affirm the decision in the 
Next Gen TV Report and Order. We continue to believe that it is 
premature to address any issues that may arise with respect to the 
voluntary carriage of ATSC 3.0 signals before broadcasters begin 
widespread transmission in this new voluntary standard. Determining 
whether our retransmission consent rules have been violated in the 
context of a particular negotiation is inherently a fact-specific 
inquiry. There is no basis in this record for us to adopt rules of 
general applicability. To the extent a cable operator or satellite 
carrier believes that the Commission's retransmission consent rules 
have been violated, they may file a complaint.

E. Patent Issue

    60. We dismiss and, on alternative and independent grounds deny, 
NCTA's request to reconsider the Commission's decision in the Next Gen 
TV Report and Order not to require that patents relevant to the ATSC 
3.0 standard must be licensed on a reasonable and non-discriminatory 
(RAND) basis.\41\ The Commission fully considered this issue in the 
Next Gen TV Report and Order and rejected requests for such a 
requirement. Because NCTA's arguments have already been considered, we 
dismiss their Petitions on this issue.
---------------------------------------------------------------------------

    \41\ NCTA repeats its earlier request in this proceeding for the 
Commission to require RAND licensing.
---------------------------------------------------------------------------

    61. On alternative and independent grounds, we deny NCTA's 
Petitions on this issue and affirm the decision in the Next Gen TV 
Report and Order. We disagree with NCTA's contention that the 
Commission's decision not to require RAND licensing for standards-
essential patents is inconsistent with the Commission's decision 
approving the current DTV standard, ATSC 1.0. Although we do not 
believe that different approaches in the two contexts would necessarily 
be a cause for reconsideration, especially because ATSC 3.0 is 
voluntary at this time, we agree with NAB and ONE Media that the 
decision is consistent with the Commission's decision in the DTV 
context. In the order adopting the ATSC 1.0 standard for digital 
television broadcasting, the Commission stated that it did not believe 
that licensing of the patents for the ATSC standard would impede the 
development of DTV products. The Commission also stated that the 
adoption of the standard was ``premised'' on ``reasonable and non-
discriminatory'' licensing, but determined that Commission rules were 
not necessary. The Commission emphasized that if a problem with patent 
licensing arises and is brought to the Commission's attention, it would 
``consider it and take appropriate action.'' Similarly, in the Next Gen 
TV Report and Order, the Commission observed that the ATSC requires a 
commitment to RAND licensing and stated that it would ``monitor how the 
marketplace handles patent royalties for essential patents.'' Thus, we 
find the two decisions are consistent.

V. Procedural Matters

A. Final Regulatory Flexibility Act Analysis

    62. As required by the Regulatory Flexibility Act of 1980 (RFA), as 
amended, an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Further Notice of Proposed Rulemaking in this 
proceeding. The Federal Communications Commission (Commission) sought 
written public comment on the proposals in the FNPRM, including comment 
on the IRFA. The Commission received no comments in response to the 
IRFA. This present Final Regulatory Flexibility Analysis (FRFA) 
conforms to the RFA. We note that this FRFA addresses only the matters 
considered in the Second Report and Order portion of the Second Report 
and Order and Order on Reconsideration. No FRFA is necessary for the 
Order on Reconsideration portion. The only rule revisions adopted in 
the Order on Reconsideration are made to accurately reflect the sunset 
dates adopted in the 2017 Order. Because these rule changes are 
editorial and non-substantive, we find good cause to conclude that 
notice and comment are unnecessary for their adoption. Because these 
revisions do not require notice and comment, the Regulatory Flexibility 
Act does not apply to these changes. We also note that a FRFA adopting 
these sunset dates was included with the 2017 Order.
1. Need for, and Objectives of, the Report and Order
    63. 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

[[Page 43490]]

deploying ATSC 3.0 service to simulcast the primary video programming 
stream of their ATSC 3.0 channel in an ATSC 1.0 format.
    64. 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. This is 
because 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 to deliver DTV 
service 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. Because 
a TV station cannot, as a technical matter, broadcast in both 1.0 and 
3.0 format from the same facility, 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 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.
    65. The Commission in the Next Gen TV Report and Order established 
a process for considering applications to deploy ATSC 3.0 service, 
which included, among other requirements, establishing coverage 
requirements for a Next Gen TV station's ATSC 1.0 simulcast signal. The 
Commission's ATSC 1.0 simulcast coverage requirement sought to minimize 
disruption to viewers resulting from the voluntary deployment of ATSC 
3.0 by recognizing that if a station moves its ATSC 1.0 signal to a 
partner simulcast host station with a different transmitter location, 
some existing over-the-air (OTA) viewers may no longer be able to 
receive the 1.0 signal. Among other obligations, the Commission 
required the Next Gen TV station to select a partner 1.0 simulcast host 
station that is assigned to its same DMA and from which it would 
continue to provide ATSC 1.0 simulcast service to its entire community 
of license.
    66. While the Commission's rules require that all full power and 
Class A TV stations that convert their existing facility to ATSC 3.0 
are required to provide an ATSC 1.0 simulcast signal that covers a 
station's entire community of license, the Commission recognized that 
in certain circumstances such an arrangement may not be viable and in 
order to facilitate the voluntary deployment of ATSC 3.0 service 
established a waiver standard for the ATSC 1.0 simulcast requirement. 
Specifically, the Commission stated that it would favor requests for 
waiver of the obligation to provide ATSC 1.0 simulcast service if the 
station can demonstrate both that (1) it has ``no viable local 
simulcasting partner'' in its market; and (2) it will ``make reasonable 
efforts to preserve 1.0 service to existing viewers in its community of 
license and/or otherwise minimize the impact on such viewers (for 
example, by providing free or low cost ATSC 3.0 converters to 
viewers).'' Specifically, the Commission stated it would consider 
waiver requests from full power and Class A TV stations to transition 
directly from ATSC 1.0 to ATSC 3.0 service on the station's existing 
facility without providing an ATSC 1.0 simulcast service at all. 
Alternatively, a station may request a waiver of the ATSC 1.0 simulcast 
requirement so it could air an ATSC 1.0 simulcast signal from a partner 
simulcast host that does not cover all or a portion of the station's 
community of license or can provide only a lower signal threshold over 
the station's community of license than that required by the rules.
    67. In the Next Gen TV Further Notice, the Commission sought 
comment on three topics relating to local simulcasting rules. First, it 
sought further comment on issues related to waivers of, and exemptions 
from, the local simulcasting requirement. In particular, the Commission 
sought comment on whether further guidance should be provided about the 
circumstances in which it would grant such a waiver, including how to 
define whether a station has ``no viable local simulcasting partner'' 
and whether a station has taken ``reasonable efforts to preserve 
service and/or minimize impact on viewers.'' Second, the Next Gen TV 
Further Notice sought further comment on whether to let full power 
broadcasters use channels in the television broadcast band that are 
vacant to facilitate the transition to ATSC 3.0. Third, it tentatively 
concluded that local simulcasting should not change the ``significantly 
viewed status'' of a Next Gen TV station for purposes of determining 
MVPD carriage.
    68. In the Second Report and Order, we address the three issues 
raised in the Next Gen TV Further Notice. First, we provide guidance on 
how Commission staff will evaluate petitions for waiver of our local 
simulcasting rules. Second, we decline at this time to permit 
broadcasters to use vacant in-band channels for purposes of voluntary 
ATSC 3.0 deployment. Third, we adopt our tentative conclusion that the 
significantly viewed status of a Next Gen TV station should not change 
if it moves its ATSC 1.0 simulcast channel to a host facility.
2. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    69. There were no comments filed that specifically addressed the 
rules and policies proposed in the IRFA.
3. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration
    70. 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 Proposed Rules Will Apply
    71. The types of small entities that may be affected by the Second 
Report and Order fall within the following categories: (1) Wired 
Telecommunications Carriers; Cable Companies and Systems (Rate 
Regulation); (2) Cable System Operators (Telecom Act Standard); (3) 
Direct Broadcast Satellite Service; (4) Satellite Master Antenna 
Television (SMATV) Systems, also known as Private Cable Operators 
(PCOs); (5) Home Satellite Dish (HSD) Service, (6) Open Video Services; 
(7) Wireless Cable Systems--Broadband Radio Service and Educational 
Broadband Service; (8) Incumbent Local Exchange Carriers (ILECs) and 
Small Incumbent Local Exchange Carriers; Radio and Television 
Broadcasting and Wireless Communications Equipment Manufacturing; (9) 
Audio and Video Equipment Manufacturing; (10) and Television 
Broadcasting.
5. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    72. The Second Report and Order imposes no new reporting, 
recordkeeping or other compliance

[[Page 43491]]

requirements beyond those already established in the first Next Gen TV 
Report and Order.
6. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered
    73. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed 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.''
    74. As an initial matter, the decision to deploy ATSC 3.0 service 
is a voluntary choice for each broadcaster. For this reason, 
broadcasters, including small entities, do not need to undertake any 
costs or burdens associated with providing ATSC 3.0 service unless they 
choose to do so.
    75. Local Simulcasting Waivers. The first Next Gen TV Report and 
Order established a waiver standard for the local simulcast 
requirement. Specifically, the Commission stated that it would favor 
requests for waiver of the obligation to provide ATSC 1.0 simulcast 
service if the station can demonstrate both that (1) it has ``no viable 
local simulcasting partner'' in its market; and (2) it will ``make 
reasonable efforts to preserve 1.0 service to existing viewers in its 
community of license and/or otherwise minimize the impact on such 
viewers (for example, by providing free or low cost ATSC 3.0 converters 
to viewers).'' The Second Report and Order provides additional guidance 
on how Commission staff will evaluate requests for waiver of the local 
simulcasting rules. The waiver process provides broadcast television 
stations, including small entities, with an alternative means of 
deploying ATSC 3.0 service in a manner that would still achieve the 
purpose of the local simulcasting requirement. The Second Report and 
Order clarifies but does not adopt any new rules with respect to the 
waiver standard. By clarifying the circumstances in which a waiver 
request might be granted, the Commission is seeking to provide 
predictability to broadcasters, including small entities, which should 
reduce costs for broadcasters contemplating seeking waivers. In the 
Second Report and Order, the Commission considered whether to exempt 
noncommercial educational (NCE) TV stations and Class A TV stations 
from the local simulcasting requirement. The Commission decided against 
affording an exemption for these entities, preferring instead to rely 
on the waiver standard to afford these stations with any additional 
flexibility.
    76. Temporary Use of Vacant Channels. In the Second Report and 
Order, the Commission declined to adopt new rules to allow full power 
broadcasters to use vacant channels in the television broadcast band as 
transition channels in order to facilitate the deployment to ATSC 3.0 
service. Accordingly, the Second Report and Order does not create or 
change rules in this regard.
    77. Significantly Viewed Status of Next Gen TV Stations. In the 
Second Report and Order, the Commission decided that the significantly 
viewed status of a Next Gen TV station should not change if it moves 
its ATSC 1.0 simulcast channel to a temporary host facility. Under this 
proposal, a commercial television station that relocates its 1.0 
simulcast channel could not seek to gain significantly viewed status in 
new communities or counties and such station could not lose 
significantly viewed status in communities or counties for which it 
qualified prior to the move of its 1.0 simulcast channel. By 
maintaining the status quo in the significantly viewed context with 
respect to ATSC 1.0 simulcast signals, the Commission avoids 
complications and disruptions to MVPDs and broadcasters, including 
small entities. The Commission reasoned that any changes in 
significantly viewed status due to local simulcasting would be 
temporary, and this approach will avoid disruptions to cable and 
satellite television viewers who have come to rely on such signals. 
This approach will not impose new mandatory carriage burdens on MVPDs 
and avoids burdening MVPDs with numerous changes to their carriage 
obligations.

B. Final Paperwork Reduction Act Analysis

    78. This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. In addition, therefore, it does not contain 
any new or modified information collection burden for small business 
concerns with fewer than 25 employees, pursuant to the Small Business 
Paperwork Relief Act of 2002 (SBPRA), Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

C. Congressional Review Act

    79. The Commission has determined, and the Administrator of the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, concurs that this rule is ``non-major'' under the Congressional 
Review Act, 5 U.S.C. 804(2). The Commission will send a copy of the 
Order to Congress and the Government Accountability Office, pursuant to 
5 U.S.C. 801(a)(1)(A).

D. Additional Information

    80. For additional information, contact Evan Baranoff, 
[email protected], of the Media Bureau, Policy Division, (202) 418-
7142. Direct press inquiries to Janice Wise at (202) 418-8165.

VI. Ordering Clauses

    81. 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 Second Report and Order and Order on 
Reconsideration is hereby adopted, effective thirty (30) days after the 
date of publication in the Federal Register.
    82. It is further ordered that the Commission's Rules are hereby 
amended as set forth in Appendix B and will become effective 30 days 
after publication in the Federal Register.
    83. It is further ordered that pursuant to sections 4(i) and 405 of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 405, and 
Sec.  1.429 of the Commission's rules, 47 CFR 1.429, NCTA's and ATVA's 
Petitions for Reconsideration are dismissed and, on alternative and 
independent grounds, denied.
    84. It is further ordered that the Commission shall send a copy of 
this Second Report and Order and Order on Reconsideration in a report 
to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Parts 73 and 74

    Communications equipment, Television.


[[Page 43492]]


Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

    For the reasons stated 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, and 339.


Sec.  73.682  [Amended]

0
2. Amend Sec.  73.682(f)(2) by removing ``February 2, 2023'' and adding 
in its place ``March 6, 2023''.


0
3. Amend Sec.  73.3801 by adding paragraph (b)(3) to read as follows:


Sec.  73.3801  Full Power Television Simulcasting During the ATSC 3.0 
(Next Gen TV) Transition.

* * * * *
    (b) * * *
    (3) The ``substantially similar'' requirement in paragraph (b)(1) 
of this section will sunset on July 17, 2023.
* * * * *

0
4. Amend Sec.  73.6029 by adding paragraph (b)(3) to read as follows:


Sec.  73.6029  Class A Television Simulcasting During the ATSC 3.0 
(Next Gen TV) Transition

* * * * *
    (b) * * *
    (3) The ``substantially similar'' requirement in paragraph (b)(1) 
of this section will sunset on July 17, 2023.
* * * * *

PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER 
PROGRAM DISTRIBUTIONAL SERVICES

0
5. The authority for part 74 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303, 307, 309, 310, 336, and 
554.


0
6. Amend Sec.  74.782 by adding paragraph (b)(3) to read as follows:


Sec.  74.782  Low Power Television and TV Translator Simulcasting 
During the ATSC 3.0 (Next Gen TV) Transition

* * * * *
    (b) * * *
    (3) The ``substantially similar'' requirement in paragraph (b)(1) 
of this section will sunset on July 17, 2023.
* * * * *
[FR Doc. 2020-13837 Filed 7-16-20; 8:45 am]
BILLING CODE 6712-01-P