Authorizing Permissive Use of the “Next Generation” Broadcast Television Standard, 45347-45369 [2023-14408]
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Federal Register / Vol. 88, No. 135 / Monday, July 17, 2023 / Rules and Regulations
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James F. Lane,
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FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 73 and 74
[GN Docket No. 16–142; FCC 23–53; FR ID
152588]
Authorizing Permissive Use of the
‘‘Next Generation’’ Broadcast
Television Standard
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the Federal
Communications Commission
(Commission) makes changes to its Next
Gen TV rules designed to preserve overthe-air (OTA) television viewers’ access
to the widest possible range of
programming while also supporting
television broadcasters’ transition to the
next generation of broadcast television
technology. In the first part of this
Order, the Commission establishes a
licensing regime for Next Gen TV
stations’ multicast streams that are aired
on host stations during the transition
period. In the second part of this Order,
the Commission retains the
substantially similar rule and the
requirement to comply with the ATSC
A/322 standard.
DATES: Effective August 16, 2023, except
for §§ 73.3801(f) and (i), 73.6029(f) and
(i), and 74.782(g) and (j) which contain
information collection requirements that
are not effective until approved by the
Office of Management and Budget
(OMB). The Commission will publish a
document in the Federal Register
announcing the effective date for these
sections. In addition, effective August
16, 2023, the stay on 47 CFR
73.682(f)(2)(iii) is lifted.
FOR FURTHER INFORMATION CONTACT: For
additional information, contact Evan
Baranoff, Evan.Baranoff@fcc.gov, of the
Media Bureau, Policy Division, (202)
418–7142. Direct press inquiries to
Janice Wise at (202) 418–8165. For
additional information concerning the
Paperwork Reduction Act information
collection requirements contained in
this document, send an email to PRA@
fcc.gov or contact Cathy Williams at
(202) 418–2918.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Third
Report and Order, in GN Docket No. 16–
142; FCC 23–53, adopted on June 20,
2023 and released on June 23, 2023. The
full text of this document is available
electronically via the FCC’s website at
https://docs.fcc.gov/public/
attachments/FCC-23-53A1.pdf or via the
FCC’s Electronic Comment Filing
SUMMARY:
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Federal Register / Vol. 88, No. 135 / Monday, July 17, 2023 / Rules and Regulations
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Alternative formats are available for
people with disabilities (Braille, large
print, electronic files, audio format), by
sending an email to fcc504@fcc.gov or
calling the Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
Synopsis
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I. Introduction
1. In this Third Report and Order in
the Next Generation Broadcast
Television (ATSC 3.0 or Next Gen TV)
docket, we make changes to our Next
Gen TV rules designed to preserve overthe-air (OTA) television viewers’ access
to the widest possible range of
programming while also supporting
television broadcasters’ transition to the
next generation of broadcast television
technology. These changes are based on
the records collected in response to both
the Next Gen TV Multicast Licensing
FNPRM, 86 FR 70793 (Dec. 13, 2021),
and the Sunsets FNPRM, 87 FR 40464
(Jul 7, 2022). We generally adopt our
proposal in the Next Gen TV Multicast
Licensing FNPRM to allow a Next Gen
TV station 1 to seek modification of its
license 2 to include certain of its nonprimary video programming streams
(multicast streams) 3 that are aired on
‘‘host’’ stations 4 during a transitional
1 By ‘‘Next Gen TV’’ broadcaster or station, we
mean a television broadcaster or station that has
obtained Commission approval and commenced
broadcasting its signal using the ATSC 3.0 standard
in its local market. A station can deploy ATSC 3.0
service either by converting its own facility to
ATSC 3.0 or by airing its ATSC 3.0 signal(s) on a
station in its local market that has converted its
facility to ATSC 3.0 (which we refer to as an ATSC
3.0 ‘‘host’’ station). For purposes of this Report and
Order, a station’s ‘‘own’’ channel or facility refers
to the channel and facility on which it operated
prior to its transition to ATSC 3.0 (even if it has
already converted to operate in 3.0). We use this
term to distinguish between operations on this
facility and a station’s operations as a guest on a
host facility.
2 While in this document we may refer to the
licensing of multicast streams, we clarify that we
are establishing a process to license a guest Next
Gen TV station capacity on a host’s channel for the
purpose of airing one or more guest multicast
streams. Consistent with the Next Gen TV Multicast
Licensing FNPRM, each portion of a host channel
that is being licensed by a guest station to air one
or more programming streams will be separately
authorized channels under the originating (guest)
broadcaster’s single, unified license.
3 For purposes of this Report and Order,
‘‘multicast’’ stream(s) refers to a TV broadcast
station’s non-primary video programming stream(s);
that is, stream(s) other than the station’s primary
video programming stream.
4 A ‘‘host’’ station is one whose facilities are being
used to transmit programming originated by another
station (i.e., ‘‘guest’’) as part of a local simulcasting
arrangement.
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period. In adopting this proposal, we
follow the same licensing framework,
and to a large extent the same regulatory
regime, established for the simulcast of
primary video programming streams on
‘‘host’’ station facilities.5 We also extend
the sunsets of, and thus retain in effect
until at least July 17, 2027, the
substantially similar rule for simulcast
streams and the requirement to comply
with the ATSC A/322 standard on
primary 3.0 streams.6
2. Given that Next Gen TV stations
must, without any additional allocation
of spectrum, continue serving ATSC 1.0
viewers while voluntarily transitioning
to ATSC 3.0, we seek to take actions that
will minimize viewer disruption as
much as possible during this limited
transition period. Specifically, this
Report and Order seeks to facilitate and
encourage partnerships that will
minimize potential disruptions by
permitting stations in a market to work
together to preserve viewers’ access to
ATSC 1.0-formatted programming
during the transition. We intend
simultaneously to facilitate
broadcasters’ voluntary transition to
ATSC 3.0, which can provide
consumers with the benefit of new and
innovative services, while protecting the
vast majority of over-the-air TV viewers
who continue to rely on 1.0 equipment.
3. In the accompanying Fourth
Further Notice of Proposed Rulemaking
(RAND FNPRM), published elsewhere in
this issue of the Federal Register, we
seek to further our understanding of the
current marketplace for ATSC 3.0
Standard Essential Patents (SEPs) and
the ability of third parties to develop
products that rely upon them. We also
seek comment on the impact on
consumers if the Commission were to
adopt, or not adopt, rules to require
essential patent holders in 3.0
technology to commit to licensing them
on reasonable and non-discriminatory
(RAND) terms.
II. Background
4. In 2017, the Commission
authorized television broadcasters to
use the Next Gen TV transmission
standard, also called ‘‘ATSC 3.0’’ or
‘‘3.0,’’ on a voluntary, market-driven
5 We note that our rules do not prohibit the use
of private contractual arrangements for partner
stations to air their multicast streams. For
regulatory compliance purposes, such streams
would be considered multicast streams of the host
partner station, not the originator (guest) station.
6 The Commission will initiate a review
approximately one year before these rules are set to
expire to seek comment on whether they should be
extended based on marketplace conditions at that
time.
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basis.7 The Commission required that
broadcasters voluntarily deploying
ATSC 3.0 service must, with very
limited exceptions,8 continue to air at
least their primary streams using the
current-generation TV transmission
standard, also called ‘‘ATSC 1.0’’ or
‘‘1.0,’’ to their viewers through ‘‘local
simulcasting.’’ Under the Commission’s
rules, Next Gen TV broadcasters are
encouraged, but not required, to
simulcast their 3.0 multicast streams in
a 1.0 format.
5. The Commission found that the
local simulcasting requirement is
crucial to deploying Next Gen TV
service in a manner that minimizes
viewer disruption. The Next Gen TV
standard is not backward-compatible
with existing TV sets or receivers,
which have only ATSC 1.0 and analog
tuners. Accordingly, viewers will be
unable to watch ATSC 3.0 transmissions
on their existing televisions without
additional equipment. Thus, it is critical
that Next Gen TV broadcasters continue
to provide service using the current
ATSC 1.0 standard while the consumer
equipment marketplace adopts
televisions and converter devices
compatible with the new 3.0
transmission standard. This is necessary
in order to avoid forcing viewers to
acquire expensive new equipment
immediately or depriving them of their
local television service during the
transition. Because a TV station cannot,
as a technical matter, simultaneously
broadcast in both 1.0 and 3.0 format
from the same facility on the same
physical channel, local simulcasting
must be effectuated through voluntary
7 Next Gen TV is the newest broadcast TV
transmission standard, developed by the Advanced
Television Systems Committee (ATSC), which
promises to enable broadcasters to deliver an array
of new video and non-video services and enhanced
content features to consumers. ATSC 3.0 merges the
capabilities of over-the-air (OTA) broadcasting with
the broadband viewing and information delivery
methods of the internet, using the same 6 MHz
channels presently allocated for TV service. As 3.0
proponents have previously explained to the
Commission, the greater spectral capacity of the
new standard and its internet-Protocol delivery
component will allow broadcasters to provide
consumers with a higher quality television viewing
experience, such as ultra-high-definition (UHD)
picture resolutions and immersive audio. It also has
the potential to enable broadcasters to reach
viewers on both home and mobile screens. In
addition, ATSC 3.0 will allow broadcasters to offer
enhanced public safety capabilities, such as geotargeting of emergency alerts to tailor information
to particular communities and emergency alerting
capable of waking up sleeping devices to warn
consumers of imminent emergencies, as well as
greater accessibility options, localized content, and
interactive educational children’s content.
8 LPTV and TV translator stations may deploy
ATSC 3.0 service without providing an ATSC 1.0
simulcast signal. In addition, full power and Class
A stations may request a waiver of the simulcast
requirements.
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partnerships that broadcasters seeking
to provide Next Gen TV service enter
into with other broadcasters in their
local markets. A Next Gen TV station
must partner with another television
station (i.e., a temporary ‘‘host’’ station)
in its local market to either: (1) air an
ATSC 3.0 channel at the temporary
host’s facility, while using its original
facility to continue to provide an ATSC
1.0 simulcast channel, or (2) air an
ATSC 1.0 simulcast channel at the
temporary host’s facility, while
converting its original facility to the
ATSC 3.0 standard in order to provide
a 3.0 channel.9 A Next Gen TV station’s
ATSC 1.0 ‘‘simulcast’’ must be
‘‘substantially similar’’ to that of the
primary video programming stream on
the ATSC 3.0 channel. Substantially
similar ‘‘means that the programming
must be the same except for
advertisements, promotions for
upcoming programs, and programming
features that are based on the enhanced
capabilities of ATSC 3.0.’’
6. The process for considering
applications to deploy ATSC 3.0 service
includes coverage requirements for a
Next Gen TV station’s ATSC 1.0
simulcast signal.10 The Commission
sought to minimize disruption to
viewers resulting from the voluntary
deployment of ATSC 3.0 while
recognizing that if a station moves its
ATSC 1.0 signal to a partner simulcast
host station with a different transmitter
location, some OTA viewers may no
longer be able to receive the station’s 1.0
signal. Among other obligations, the
Commission requires the Next Gen TV
station to select a partner 1.0 simulcast
host station that is assigned to its same
designated market area (DMA) and from
which it will continue to provide ATSC
1.0 simulcast service to its entire
community of license.11
9 In either case, a Next Gen TV broadcaster must
simulcast the primary video programming stream of
its ATSC 3.0 channel in an ATSC 1.0 format, so that
viewers will continue to receive ATSC 1.0 service.
By the time the transition is complete, any
temporary authority granted for local simulcasting
will expire, and a station will once again be
required to air all of its licensed programming on
its own single channel. In June 2022, the
Commission initiated a proceeding to consider the
state of the transition and the Next Gen TV
marketplace.
10 A Next Gen TV broadcaster must file an
application and obtain Commission approval before
a 1.0 simulcast channel or a 3.0 channel aired on
a partner host station can go on the air, as well as
before an existing 1.0 station can convert to 3.0
operation or back to 1.0 operation.
11 Because Class A TV stations do not have a
community of license, the Commission established
a coverage requirement based on contour overlap
and mileage. Some stations may not be formally
assigned by Nielsen to DMAs. As stated in the Next
Gen TV First Report and Order, ‘‘we will consider
stations that are not assigned to a DMA by Nielsen
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A. Multicast Licensing
7. According to the National
Association of Broadcasters (NAB), as
ATSC 3.0 deployment has progressed,
broadcasters interested in transitioning
to ATSC 3.0 while maintaining their
current programming streams have
faced challenges finding partner stations
willing to host broadcasters’ multicast
streams through private contractual
agreements. Moreover, NAB states that
Next Gen TV broadcasters want to
‘‘continue to serve audiences with
multicast streams,’’ even though they
are not required to do so. NAB contends
that stations are hesitant to serve as
hosts pursuant to private arrangements
due to concerns about regulatory
liability and whether such private
multicast agreements are expressly
permitted under the Commission’s
ATSC 3.0 rules. Moreover, NAB
observes that ‘‘a purely contractual
approach [to ATSC 3.0 deploymentrelated sharing arrangements] would
exclude noncommercial stations from
participating in sharing arrangements to
host commercial multicast streams’’
under section 399B of the of the
Communications Act. In addition, NAB
asserts that if broadcasters execute
hosting agreements for their multicast
streams that are not reflected on the
license of the originating station, ‘‘the
Commission might not retain
enforcement authority’’ over the
originating station with respect to that
guest stream.12
8. Because our existing rules do not
address a guest station’s licensing of a
host station’s spectrum to air multicast
streams, even with regard to the host
that is airing the guest station’s primary
stream, the Media Bureau implemented
an interim process by which a Next Gen
TV broadcaster that has converted or is
seeking to convert its facility to 3.0 can
seek special temporary authority (STA)
to air 1.0 multicast streams on a host
station. Just as under the current rules
for primary guest streams, these STAs
permit a guest multicast stream to be
treated as if it originated from the Next
Gen TV broadcaster’s facility, as
opposed to the host station’s facility, for
purposes of the Commission’s rules and
the Communications Act. The STAs
granted to date are valid for six months
but may be renewed. This case-by-case
process is resource-intensive for both
the Commission and broadcasters, in
to be assigned to the DMA in which they are
located.’’
12 The NAB asserts that these issues ‘‘could create
complex contractual indemnification concerns that
could complicate deployment,’’ particularly for
NCE stations, ‘‘some of which are restricted or
prohibited entirely from agreeing to
indemnification.’’
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addition to making it difficult for
potential viewers to track where streams
are being hosted.
9. In November 2020, NAB filed a
Petition for Declaratory Ruling and
Petition for Rulemaking (Petition)
asking the Commission to allow Next
Gen TV stations to seek modification of
their licenses to include certain of their
multicast streams that are aired in a
different service on host stations during
the period of transition to 3.0. In
response to the NAB Petition, we
adopted the Next Gen TV Multicast
Licensing FNPRM,13 which:
• Proposed to license a Next Gen TV
broadcaster’s simulcast multicast
stream(s) either together with its
primary stream on the primary
simulcast host or on different simulcast
host(s). A ‘‘simulcast multicast stream’’
in the context of this proceeding is a
multicast stream that is aired by a Next
Gen TV station, in substantially similar
fashion,14 in both 1.0 and 3.0 formats
throughout the mandatory local
simulcasting period.15
• Proposed to license a Next Gen TV
broadcaster’s ‘‘non-simulcast’’ 1.0
multicast stream(s) either together with
its primary stream on its primary 1.0
host or on different 1.0 simulcast
host(s). A ‘‘non-simulcast 1.0 multicast
stream’’ in the context of this
proceeding is a multicast stream that is
13 Comments were due February 11, 2022 and
reply comments were due March 14, 2022.
14 As with primary streams, ‘‘substantially
similar’’ multicast streams must have the same
programming, except for programming features that
are based on the enhanced capabilities of ATSC 3.0,
including targeted advertisements and promotions
for upcoming programs. Such enhanced content or
features that cannot reasonably be provided in
ATSC 1.0 format include: ‘‘hyper-localized’’ content
(e.g., geo-targeted weather, targeted emergency
alerts, and hyper-local news), programming features
or improvements created for the 3.0 service (e.g.,
emergency alert ‘‘wake up’’ ability and interactive
programming features), enhanced formats made
possible by 3.0 technology (e.g., 4K or HDR), and
any personalization of programming performed by
the viewer and at the viewer’s discretion.
15 That is, we mean either (1) a 1.0 multicast guest
stream aired on a host that is a simulcast of a 3.0
multicast stream aired by the Next Gen TV station,
or (2) a 3.0 multicast guest stream aired on a host
that is a simulcast of a 1.0 multicast stream aired
by the Next Gen TV station. For example, in this
situation, Station A converts to 3.0 and arranges for
Station B (remaining in 1.0) to host Station A’s
primary stream and one multicast stream in 1.0;
Petitioner wants the multicast stream, like the
primary stream, to be licensed to Station A, the
originator of the streams. In addition, if Station A
arranges for Station C (not the primary host) to host
a second multicast stream in 1.0, that multicast
stream would also be licensed to Station A. In these
examples, Station A would itself be broadcasting
both multicast streams in 3.0. Likewise, if a station
remained in 1.0, it would be allowed to license its
3.0 multicast streams aired either by the primary
host or a secondary host. In these situations, the
multicast channels are being simulcast.
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Federal Register / Vol. 88, No. 135 / Monday, July 17, 2023 / Rules and Regulations
aired only in 1.0 format and not in 3.0
format.16
• Declined to consider NAB’s
proposal to license a Next Gen TV
broadcaster’s ‘‘non-simulcast’’ 3.0
multicast stream(s) either together with
its primary stream on its primary 3.0
host or on different 3.0 host(s). A ‘‘nonsimulcast 3.0 multicast stream’’ in the
context of this proceeding is a multicast
stream that is aired only in 3.0 format
and not in 1.0 format.
• Proposed to allow, under certain
circumstances, a Next Gen TV station to
simulcast its primary stream
programming both on its primary stream
host and on a multicast stream carried
by a different partner station in order to
minimize the impact of service loss that
would result if it were only able to air
its primary stream on a single host.
The Next Gen TV Multicast Licensing
FNPRM also considered whether to
limit the amount of host capacity that
may be used by a given Next Gen TV
station, and, in particular, sought
comment on NAB’s proposal that: ‘‘In
arranging for the hosting of its
programming, no individual broadcaster
shall partner with other stations to host,
in the aggregate, more programming
than such station could broadcast on its
own facilities based on the then-current
state of the art for television
broadcasting as evidenced by other
television stations then operating with
the same standard.’’ In response to the
Next Gen TV Multicast Licensing
FNPRM, we received comments, reply
comments, and ex parte
communications from 15 different
parties, including 10 broadcast station
groups and associations (including
NAB) and two multichannel video
programming distributor (MVPD)
associations.
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B. Sunsets
10. ‘‘Substantially Similar’’ Rule. In
the First Next Gen TV Report and Order,
83 FR 4998 (Feb. 2, 2018), the
Commission adopted a requirement that
the programming aired on a Next Gen
TV station’s ATSC 1.0 simulcast
channel be ‘‘substantially similar’’ to
16 For example, using Stations A, B, and C from
the prior example, Station A (the 3.0 host) only has
enough capacity to air its primary channel, Station
B’s primary channel, and Station C’s primary
channel in 3.0, but wants to continue to provide its
multicast channels in 1.0 during the transition. In
this situation, Stations B and C would each be
hosting a multicast stream licensed to Station A, but
neither multicast stream would be simulcast. Thus,
by ‘‘non-simulcast 1.0 multicast stream,’’ we refer
to a multicast stream that was originated by a Next
Gen TV station and aired in 1.0 format either on its
own channel or a 1.0 host’s channel, but that has
no ‘‘substantially similar’’ stream being aired in 3.0
format by the originating station, whether on its
own channel or on a 3.0 host’s channel.
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that of the primary video programming
stream on the ATSC 3.0 channel.17 This
means that the programming must be
the same, except for programming
features that are based on the enhanced
capabilities of ATSC 3.0 and promotions
for upcoming programs. In adopting this
approach, the Commission found it
‘‘will help ensure that viewers do not
lose access to the broadcast
programming they receive today, while
still providing flexibility for
broadcasters to innovate and experiment
with new, innovative programming
features using Next Gen TV
technology.’’ The Commission decided,
however, that the substantially similar
requirement would expire on July 17,
2023, unless the Commission takes
action to extend it.18 In this regard, the
Commission concluded that, while ‘‘this
[substantially similar] requirement is
necessary in the early stages of ATSC
3.0 deployment, it could unnecessarily
impede Next Gen TV programming
innovations as the deployment of ATSC
3.0 progresses.’’ The Commission
further stated that it ‘‘intend[ed] to
monitor the ATSC 3.0 marketplace,’’
and would ‘‘extend the substantially
similar requirement if necessary.’’ The
substantially similar rule took effect on
July 17, 2018, and is set to expire on
July 17, 2023, unless extended by the
Commission.19 The Commission
affirmed this decision in 2020, but
stated that, approximately one year
before the requirement is set to expire,
it would seek comment on whether the
rule should be extended based on
marketplace conditions at that time.
11. Requirement to comply with the
ATSC A/322 standard. In authorizing
use of the Next Gen TV broadcast
transmission standard, the Commission
in the First Next Gen TV Report and
Order required compliance with only
two parts of the ATSC 3.0 suite of
standards: (1) ATSC A/321:2016
‘‘System Discovery & Signaling’’ (A/
321),20 which is the standard used to
communicate the RF signal type that the
17 We refer to this as the substantially similar
rule. The substantially similar rule is independent
of the requirement for Next Gen TV broadcasters to
simulcast in 1.0 format, a requirement that does not
have a sunset date.
18 We emphasize that the underlying requirement
that a Next Gen TV station must simulcast in 1.0
format does not have a sunset date. In addition,
none of the other aspects of the local simulcasting
rules are set to expire, including those governing
simulcast arrangements and agreements; DMA and
community of license coverage; and MVPD notices
and consumer education.
19 The local simulcasting rules, sections 73.3801,
73.6029, and 74.782, took effect on July 17, 2018.
20 See ATSC A/321:2016 ‘‘System Discovery &
Signaling’’ (2016), https://www.atsc.org/wpcontent/uploads/2016/03/A321-2016-SystemDiscovery-and-Signaling.pdf.
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ATSC 3.0 signal will use; and (2) A/
322:2016 ‘‘Physical Layer Protocol’’ (A/
322),21 which is the standard that
defines the waveforms that ATSC 3.0
signals may take.22 In requiring
compliance with A/322, the
Commission observed that ‘‘device
manufacturers and MVPDs may not be
able to reliably predict what signal
modulation a broadcaster is using
unless broadcasters are required to
follow A/322,’’ at least with respect to
their required primary programming
stream. The Commission explained that
‘‘[t]his uncertainty could cause
manufacturers to inadvertently build
equipment that cannot receive Next Gen
TV broadcasts or could render MVPDs
unable to receive and retransmit the
signals of Next Gen TV stations. These
outcomes would harm consumers.’’ The
Commission, however, decided that it
was not appropriate at the time ‘‘to
require broadcasters to adhere to A/322
indefinitely,’’ explaining that ‘‘the
ATSC 3.0 standard could evolve, and
stagnant Commission rules could
prevent broadcasters from taking
advantage of that evolution.’’ The
Commission thus determined that the
requirement to comply with the A/322
standard would expire on March 6,
2023, absent Commission action to
extend it. In establishing a sunset for A/
322 compliance, the Commission sought
to ‘‘balance [its] goals of protecting
consumers while promoting
innovation.’’ 23 The Commission
affirmed this decision in 2020, but
stated that, approximately one year
before the requirement is set to expire,
it would seek comment on whether the
rule should be extended based on
marketplace conditions at that time.
12. In June 2022, we adopted a Third
Further Notice of Proposed Rulemaking
(Sunsets FNPRM) in the Next Gen TV
docket considering and seeking
comment on the state of the Next Gen
TV transition and on the scheduled
sunsets of the substantially similar rule
and the requirement to comply with the
ATSC A/322 standard. In response to
the Sunsets FNPRM, the Commission
received comments and reply comments
from 32 different parties.
21 See ATSC A/322:2016 ‘‘Physical Layer
Protocol’’ (2016), https://atsc.org/wp-content/
uploads/2016/10/A322-2016-Physical-LayerProtocol.pdf.
22 These two standards were incorporated by
reference into the Commission’s rules. The
Commission applied the A/322 standard only to a
Next Gen TV station’s primary, free, OTA video
programming stream.
23 On March 6, 2023, the Commission temporarily
extended this requirement pending further
Commission action on the sunset.
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III. Discussion
13. In this Order, we largely adopt the
rules proposed in the Next Gen TV
Multicast Licensing FNPRM,
establishing a licensing regime for Next
Gen TV stations’ multicast streams that
are aired on host stations during the
transition period. The rules we adopt
facilitate and encourage Next Gen TV
stations to preserve consumer access to
multicast programming in 1.0 format
during the voluntary ATSC 3.0
transition. They will provide the
industry with regulatory certainty about
the legal treatment of licensed multicast
streams; clarify that the originating
station (and not the host station) is
responsible for regulatory compliance
regarding a multicast stream being aired
on a host station; give the Commission
clear enforcement authority over the
originating station in the event of a rule
violation on the hosted multicast
programming stream; and facilitate NCE
stations’ 3.0 deployment by allowing
them to serve as hosts to commercial
stations’ multicast streams. We
recognize that allowing Next Gen TV
stations to seek modification of their
licenses to include capacity on multiple
host stations represents a notable
departure from our present licensing
regime. We also recognize that every
such departure in aid of the voluntary
NextGen TV transition, however minor
it may appear, results in potential
consumer harm and expense. For
example, each time a stream is hosted
on a different facility with a different
noise-limited service contour (NLSC),
some current viewers may lose a signal
on which they may have come to rely,
for the entire uncertain duration of the
transition. By the same token, some
viewers who were not previously in the
coverage area may receive the signal for
the first time. These viewers may come
to rely on a signal that may be
permanently lost at the end of the
transition. Even in the case where a
hosted stream covers the entire NLSC of
the originating station, each time a
change is made every single viewer
must rescan each of their televisions
and other receive devices to continue to
receive that signal. In considering
proposals like those in this proceeding,
we therefore must weigh these
inescapable harms, along with others
unique to specific proposals, against the
benefits that permitting additional
flexibility in our licensing procedures
may provide. In the case of the rules and
flexibility adopted in this Order, we
find that departing from our licensing
regime is appropriate because it is
limited to the temporary broadcast
transition to 3.0 and to specific
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situations for which there is a clear
need. Where we have declined to adopt
the flexibility sought by broadcasters, it
is because the record does not
demonstrate that the needs and benefits
outweigh the harms.
14. First, we conclude that Next Gen
TV stations may seek modification of
their licenses to include one or more
simulcast multicast streams on a host
station or stations, whether that guest
stream is a 1.0 or 3.0 simulcast
(‘‘simulcast’’ multicast streams).
Second, we conclude that Next Gen TV
stations that are broadcasting in 3.0 on
their own channels may seek
modification of their licenses to include
one or more multicast streams aired
only in 1.0 format on a host station or
stations even if they are not
simulcasting that stream in 3.0 (‘‘nonsimulcast’’ 1.0 multicast streams). To
permit the licensing of multicast
streams on a host, each of the
originating station’s guest multicast
streams will be licensed as a temporary
channel in the same manner as its
primary stream is licensed on the
primary host. That is, each of the
originating station’s guest multicast
streams aired on a host will be
considered to be an additional,
separately authorized channel under the
originating station’s single, unified
license. Third, we decline to address
comments asking us to allow the
licensing of 3.0 non-simulcast multicast
streams (aired as guest streams on a 3.0
host station, as opposed to aired on a 3.0
station’s own facility) because we
specifically did not seek comment on
this issue. Fourth, we limit the number
of 1.0 guest streams that may be
included in the license of a single Next
Gen TV station to those which it would
have the capacity to transmit over its
own facility in 1.0. Fifth we allow, in
certain circumstances, a Next Gen TV
station to simulcast its primary stream
programming both on its primary stream
host and on a multicast stream carried
by a different partner station in order to
minimize the impact of 1.0 primary
service loss that would result if
originating station were only able to air
its primary stream on a single host.
Sixth, we extend the ‘‘ownership
waiver’’ that applies in the primary
stream context to ensure that hosted
multicast streams do not implicate our
broadcaster attribution rules, while
reiterating that any changes in our rules
governing multicast streams, including
any changes adopted in the ongoing
ownership proceeding, will apply
equally to hosted multicast streams.
Seventh, we decline to license same
service (or ‘‘lateral’’) hosting
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arrangements. Eighth, we conclude that
we will generally apply the same ATSC
3.0 transition rules to licensed multicast
streams as we do to primary simulcast
streams. Ninth, we conclude that our
multicast licensing rules will apply
until the Commission eliminates the
mandatory local simulcasting
requirement. Finally, we extend the
sunset dates for the substantially similar
rule for simulcast streams and the
requirement to comply with the ATSC
A/322 standard on primary 3.0 streams.
A. Simulcast Multicast Streams
15. We adopt our unopposed tentative
conclusion to allow a Next Gen TV
broadcaster to seek modification of its
license to include its simulcast
multicast stream(s), whether they are
hosted together with its primary stream
on the primary simulcast host or on
different simulcast host(s). That is, a
Next Gen TV station may seek
modification of its license to include
one or more of its multicast streams,
hosted by one or more partner stations,
whenever the Next Gen TV station is
airing that multicast stream in
‘‘substantially similar’’ fashion in both
1.0 and 3.0 formats and otherwise
complying with the capacity, coverage,
and other requirements discussed
below. Broadcasters support this
proposal,24 and no commenter raised
any concerns about permitting the
licensing of simulcast multicast streams.
We adopt our tentative conclusion that
any ‘‘simulcast’’ multicast streams must
be ‘‘substantially similar’’ as that term is
24 As explained in the Next Gen TV Multicast
Licensing FNPRM, the Commission did not address
the issue of multicast licensing when adopting its
initial rules. Instead, by default, multicast
arrangements were left to private contractual
arrangements and more recently to the STA process.
We thus reject ONE Media’s characterization of our
existing rules. We clarify that the existing rules
(relating to a Next Gen TV station’s primary stream
aired on a host) authorize only the use of the
amount of capacity on a host’s channel that is
necessary for airing the guest’s primary stream. The
Commission did not previously authorize a guest
station’s use of host capacity for airing anything
other than the guest’s primary stream. We further
clarify that we are authorizing a guest station to use
host capacity only for the specific purpose of airing
specific programming streams, each of which must
be identified in the license application. We also
thus reject ONE Media’s position that ‘‘a guest
station can use its capacity on the licensed host
channel(s) for whatever programming or data
services it wants.’’ To be clear, guest stations (1.0
or 3.0) may never license host capacity for ancillary
or supplemental services (also called Broadcast
Internet services), although we note they may lease
excess capacity from a host for such purposes
through a private contractual arrangement.
Moreover, guest stations on a 3.0 host, of course,
may air 3.0 features even if separately provided
from the programming stream (e.g., advanced
emergency alerts), as such features are not ancillary
or supplemental services but rather enhanced
programming features.
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defined in our rules and will apply this
requirement for as long as it applies to
primary simulcasts. In order to be
considered a ‘‘simulcast,’’ a 1.0
multicast stream must be paired, one to
one, with an identified 3.0 multicast
stream.25 We find that permitting the
licensing of simulcast multicast streams
best meets our dual goals of facilitating
the transition to 3.0 and protecting
current 1.0 viewers for the reasons
discussed above, including by allowing
NCE stations to host commercial
multicast streams without violating
section 399B. We again emphasize,
however, that like local simulcasting
arrangements for primary streams,
hosting arrangements for multicast
streams are temporary ones made to
facilitate the station’s transition to 3.0
service. Any service temporarily
provided by such a multicast stream
beyond the station’s NLSC is incidental
and may not be considered for securing
any rights or benefits, now or in the
future.26
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B. Non-Simulcast 1.0 Multicast Streams
16. We also adopt our tentative
conclusion and will allow a Next Gen
TV broadcaster to seek modification of
its license to include its 1.0 nonsimulcast multicast streams, whether
they are hosted together with its
primary stream on the primary
simulcast host or on different simulcast
host(s).27 That is, a Next Gen TV station
broadcasting in 3.0 on its own channel
may seek modification of its license to
include one or more 1.0 multicast
streams aired on a 1.0 host or hosts,
even when it is not simulcasting that
multicast stream on a paired stream in
a 3.0 format, so long as it is otherwise
complying with the capacity, coverage,
25 Multicast streams serving to deliver a primary
stream’s signal in order to minimize 1.0 primary
stream service loss are the sole exception to this
requirement.
26 At the conclusion of the transition, each Next
Gen TV station will resume service exclusively
from its own facility, serving its existing NLSC.
Because any service beyond this area will be
temporary, such service will not be considered by
the Commission in other contexts (e.g., must carry
demands, market modifications, petitions for
rulemaking to change a community of license, etc.).
27 BitPath asked that we permit the licensing of
multicast streams on different hosts with identical
programming when necessary in order to preserve
service. We do not adopt a specific rule addressing
such streams, but we note that all guest multicast
streams must serve the originating station’s
community of license, and each of a station’s hosted
streams will be considered when determining its
compliance with the limitations on host capacity.
In order to provide flexibility to preserve existing
multicast streams, we also decline to restrict the
number of 1.0 hosts with which a station may
partner, so long as it does not exceed its licensed
capacity and complies with the coverage
requirements discussed below for each of its
streams.
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and other requirements discussed
below.28 Broadcaster commenters
support allowing the licensing of 1.0
non-simulcast multicast streams,29
while MVPD commenters do not oppose
such licensing, provided it is subject to
reasonable limitations.30 Like the
licensing of 1.0 simulcast multicast
streams, we find that permitting the
licensing of 1.0 non-simulcast multicast
streams will help preserve existing
service and will achieve the goals
discussed above, including by allowing
NCE stations to host commercial
multicast streams without violating
section 399B.31 We agree with
broadcasters that allowing multicast
licensing for 1.0 non-simulcast
multicast streams will benefit
consumers by preserving viewer access
to 1.0 multicast streams, particularly in
situations where broadcasters that have
transitioned to 3.0 on their own
channels lack capacity to air their
multicast streams on their 3.0 facilities.
As observed in the Next Gen TV
Multicast Licensing FNPRM, at this early
stage of the transition ATSC 3.0 capacity
will be limited. During the initial rollout of 3.0 service, we expect markets
will generally start with one or two
ATSC 3.0 ‘‘lighthouse’’ stations, leaving
capacity on 3.0 lighthouse stations
mostly—if not entirely—for Next Gen
TV stations’ primary streams. We agree
with broadcasters that denying them
this flexibility would likely lead them to
stop broadcasting some 1.0 multicast
streams altogether. We therefore find
that, by extending our multicast
licensing approach to non-simulcast 1.0
multicast streams, we will not only
encourage Next Gen TV broadcasters to
28 Non-simulcast 1.0 multicast streams licensed
pursuant to our rules are not required to comply
with 47 CFR 73.3801(b), 73.6029(b), and 74.782(b)
(the ‘‘Simulcasting Requirement’’).
29 Broadcaster commenters uniformly and
enthusiastically support the licensing of nonsimulcast streams and, to the extent the
Commission adopts any limits, they support NAB’s
proposed host capacity limit.
30 MVPDs do not oppose the licensing of nonsimulcast streams, provided there are reasonable
limits on the number and types of multicast streams
a Next Gen TV station may license on a host station.
31 Section 399B of the Communications Act
provides that ‘‘[n]o public broadcast station may
make its facilities available to any person for the
broadcasting of any advertisement.’’ 47 U.S.C.
399B(b)(2). Under a private arrangement, an NCE
station would be prohibited from hosting the
simulcast programming of a commercial station
because the stream would be aired on the
‘‘facilities’’ of the NCE licensee. However, under a
licensed approach, the ‘‘facilities’’ are no longer
exclusively the facilities of the NCE station, as each
station has a right to use the facilities pursuant to
its separate license and contractual rights. A
commercial stream aired on a partner NCE station
will be separately licensed and authorized to use
the host’s channel, therefore permitting an NCE
station to serve as a host to a commercial stream.
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preserve the multicast streams viewers
watch today, but also facilitate their
transition to 3.0 by making it easier for
them to continue serving their existing
viewers even while 3.0 spectrum is
limited. While we expect that capacity
constraints will be the primary reason
for this relief, given the strong public
interest in facilitating broadcasters’
preservation of the best possible 1.0
service during the transition period, and
our limit on the amount of host capacity
that may be licensed, we see no reason
to require broadcasters to demonstrate
3.0 capacity constraints in order to
license 1.0 non-simulcast multicast
streams.32 Finally, we again emphasize
that hosting arrangements for multicast
streams are temporary ones made to
facilitate the transition to 3.0 service.
C. Non-Simulcast 3.0 Multicast Streams
17. Our current rules do not provide
for the licensing of 3.0 non-simulcast
multicast streams aired as guest streams
on a 3.0 host station.33 In the Next Gen
TV Multicast Licensing FNPRM, we
specifically declined to seek comment
on NAB’s proposal asking us to allow a
Next Gen TV station (that continues to
broadcast in 1.0 on its own channel) to
seek modification of its license to
include 3.0 multicast (guest) streams
aired on a 3.0 host station, even if it is
not simulcasting those multicast streams
in a 1.0 format. Thus, we do not address
the comments we nevertheless received
on this issue. We note, however, that
under our existing rules, a Next Gen TV
station may air 3.0 non-simulcast
multicast streams on its own 3.0 facility.
This is because, under our existing
rules, a Next Gen TV broadcaster does
not have to simulcast its multicast
streams in 1.0 and does not need
separate license authorization to air its
own multicast streams on its own 3.0
facility.34
D. Limits on Licensing of Host Capacity
18. In response to our request for
comment on ensuring that a Next Gen
TV broadcaster does not use the interim
flexibility proposed in this FNPRM to
aggregate capacity beyond that which is
32 We thus reject NCTA’s suggestion that we
require a broadcaster to demonstrate 3.0 capacity
constraints as a prerequisite to receiving
authorization for non-simulcast 1.0 streams. We
find that concerns regarding the need for limits on
any one broadcaster’s use of spectrum will be
adequately addressed by the capacity constraints
that we adopt below.
33 Because at this time our rules do not allow
Next Gen TV stations to license host capacity for
3.0 non-simulcast multicast streams, we do not
address the issue of a 3.0 host capacity limit.
34 Consequently, a Next Gen TV station that
converts its own facility to 3.0 could air a ‘‘demo’’
multicast stream without simulcasting such stream
in 1.0.
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legally permissible today, we find that
it is appropriate to limit a Next Gen TV
station’s 1.0 host capacity to that which
it could deploy on its own 1.0 channel
and adopt a modified version of NAB’s
proposal in order to effectuate this
limit.35 Specifically, a Next Gen TV
station that has converted its own
facility to 3.0 must not license more
capacity on partner host stations, in the
aggregate, than the station could use if
it were still operating its own facility in
1.0. A Next Gen TV station must
demonstrate compliance with this rule
in its license application and may do so
by either: (1) showing that it is seeking
hosting only for streams it was
broadcasting on its own 1.0 facility prior
to its transition to 3.0; or (2) by
providing an example of another 1.0
station that is carrying or has carried the
same or a similar programming lineup
to that which it seeks to provide on host
stations and at the same resolutions. To
enable the Commission and other
interested parties to evaluate
compliance with the host capacity limit,
a Next Gen TV station applicant will be
required to provide information
regarding each of its licensed streams.
Stations may also be asked to submit
additional information to the
Commission upon request.
19. We agree with commenters
asserting that a reasonable limit on the
amount of host capacity that may be
licensed by an individual Next Gen TV
(guest) station is appropriate. As these
commenters suggest, this is needed in
order to ensure that no station abuses
the flexibility permitted by 1.0 nonsimulcast multicasting to aggregate
capacity beyond that which is
physically possible or legally
permissible when broadcasting from a
single facility. We believe this is
necessary because it is not our intention
to upend the entire structure of
35 We also sought comment on a specific NAB
proposal to address this concern, limiting the scope
of hosting arrangements by requiring that ‘‘[i]n
arranging for the hosting of its programming, no
individual broadcaster shall partner with other
stations to host, in the aggregate, more programming
than such station could broadcast on its own
facilities based on the then-current state of the art
for television broadcasting as evidenced by other
television stations then operating with the same
standard.’’ Even at the time of proposing this
language, however, NAB noted that it did not
consider such a limitation necessary. We note that
one 6 MHz channel provides a station with
approximately 19.4 Mbps of capacity. Although the
FNPRM referred to ‘‘spectrum aggregation,’’ we
agree with NAB that this concern is more accurately
described as capacity aggregation and that this
concept, and our implementation of NAB’s
proposal, also encompasses many of the concerns
discussed in the FNPRM about ‘‘programming
aggregation.’’ As noted in the Ownership Issues
section, some concerns about ‘‘programming
aggregation’’ are better addressed in the quadrennial
proceeding.
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broadcast television licenses for this
transition period, and we are conscious
of the consumer confusion that may be
inadvertently caused by the coverage
changes inherent in a multiple-host
approach. We see no reason, as a matter
of spectrum policy, to permit stations to
use more capacity on hosts than they
could on their own stations. Indeed, no
commenter argues that a single station
should have the ability to aggregate host
capacity beyond that which it could use
if it were still operating on its own
facility in 1.0.36 Broadcaster
commenters merely argue that the
likelihood of such aggregation is small,
asserting that there will be less total 1.0
capacity in a given market when a
station transitions and such capacity
will only further diminish as more
stations in the market transition. We
believe it is appropriate for our rules to
ensure this eventuality does not occur
even if the likelihood is low, especially
in light of the fact that reduced available
capacity would only amplify any
concerns about harms to competition
and diversity of viewpoints if one
station were to occupy more capacity
through hosts than its license would
otherwise permit. Accordingly, it is our
intention that the capacity limitation
operate hand in hand with our rule
permitting licensing of 1.0 nonsimulcast multicast streams.
20. We agree with NAB that any
capacity restriction we adopt should
limit stations to the capacity they could
have used if they were still broadcasting
in 1.0 on their own facilities, without
restricting their ability to add or change
programming streams during the
transition. Accordingly, we decline to
adopt alternative proposals to the extent
they seek to address issues beyond that
scope.37 To this end, we adopt the
substance of NAB’s proposal, modifying
it only to require that stations
demonstrate compliance by submitting a
limited amount of specific information
at the time of application, rather than in
response to complaints. In the Next Gen
36 We also reject APTS’ proposal to exempt NCE
stations from the host capacity limit. We find our
rationale for establishing the host capacity limit
applies to both commercial and NCE stations.
37 For example, while our rule addresses NCTA’s
call for ‘‘meaningful and enforceable limits on the
hosting of multicast streams,’’ we believe the
group’s concerns about the impact on multicast
signal carriage are better resolved in the context of
private retransmission consent negotiations or, if
appropriate, the carriage complaint process. Also,
Edge Networks (Evoca) commented ‘‘[t]he
Commission should address anticompetitive
practices of broadcasters who use their control of
content to restrict new market entry and video
competition.’’ Evoca has clarified, however, that its
recommendations regarding retransmission consent
in its initial comments were not intended to be
proposals for rulemaking.
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TV Multicast Licensing FNPRM, the
Commission expressed concern about
the specific language of NAB’s proposal,
stating that ‘‘an effective rule . . .
would need to be objective, simple for
stakeholders to understand and apply,
and amenable to enforcement.’’ MVPD
commenters agree with this concern and
suggest an objective capacity limit based
on a set number of streams, whether a
generally applicable limit or one based
on the number of streams the station
provided prior to its transition to 3.0.
Upon review of the record, we are
persuaded that such alternatives would
be overly restrictive and that the best
metric will be the number and
resolution of streams actually airing (or
that previously actually aired) on
specific 1.0 facilities.
21. We agree with ATVA that
ensuring compliance with capacity
limits associated with a single 1.0
station does not require the Commission
to engage in a technical bit-by-bit
analysis of a broadcaster’s service.
Rather, we conclude that reviewing
basic information about each proposed
stream (particularly its network
affiliation and resolution) and
considering an appropriate capacity
comparison (either the prior capacity of
the station itself or the reference point
of another 1.0 station with a similar
lineup at the same resolutions and on
the same type of facility (individual or
shared)) will suffice to enable the
Commission to ensure a particular
broadcaster is not expanding its
capacity beyond that which it could use
pursuant to the Commission’s
traditional 1.0 licensing regime.38 We
find that it is reasonable to require Next
Gen TV station applicants to provide
this information, which is largely
consistent with the information
currently required in the Legal STA
process, and therefore reject NAB’s
proposal that Next Gen TV station
applicants provide only a certification
without further information at the time
of application.
22. We reject NAB’s contention that it
would be more appropriate for the
burden of discovering excessive use of
capacity to be on MVPDs and that
comparison information should be
provided by stations only in response to
complaints.39 As justification for this
approach, NAB asserts that providing
38 This approach also captures the ‘‘state of the
art,’’ as contemplated by NAB’s proposed rule
language, by allowing stations to compare
themselves to the most advanced peer stations both
at the outset of 3.0 service and whenever they make
changes to their lineup.
39 Because we do not rely on claims of harm to
cable companies in our decision, we do not address
NAB’s objections to those claims.
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the capacity information in the absence
of a complaint would be a waste of both
Commission and broadcaster resources.
We disagree. This capacity
information—asking whether the
proposed lineup could fit within a 1.0
channel by comparing it to a similar one
that has actually aired—is necessary to
make an informed objection to a
proposed use of host capacity. Further,
we fail to see how providing this
information requires materially more
resources than NAB’s certification
proposal. Any ex ante certification of
the type proposed by NAB would
require the applicant to certify that it
has a reasonable belief that all of the
proposed streams could be
simultaneously broadcast by the station
on its own 1.0 facility if it had one. This
reasonable belief presumably would
need to be based upon the collection of
the same information we are asking the
broadcaster to provide. And we are
persuaded by NAB that broadcasters
will necessarily base such a belief on
the actual experience of specific
stations, rather than on any sort of
detailed technical analysis. Therefore,
requiring that stations preemptively
share the same public information that
would be the basis of their
certification—that is, whether the same
or a similar lineup has ever previously
aired—is reasonable and would not
‘‘waste’’ broadcaster resources.
Furthermore, we believe this
requirement provides greater certainty
to broadcasters than a complaint
process, because the showing submitted
will demonstrate compliance with the
rule.40 Moreover, as discussed below,
providing the required information
about a station’s operations during the
transition period will provide much
needed transparency for the public and
stakeholders.
E. Use of Multicast Streams To
Minimize 1.0 Primary Stream Service
Loss
23. We adopt rules providing that, in
certain circumstances, a Next Gen TV
station may simulcast its primary stream
programming both on its primary stream
host and on a multicast stream carried
by a different partner station in order to
minimize the impact of 1.0 primary
service loss that would result if an
originating station were only able to air
its primary stream on a single host.41
40 We note that, while NAB identifies these as
‘‘examples’’ of ways to demonstrate compliance,
neither they nor any other commenter have
proposed any other way for a station to demonstrate
‘‘that it could successfully transmit all hosted
programming on a single ATSC 1.0 facility.’’
41 While the Bureau will consider proposals that
would use more than one multicast stream (airing
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We also adopt our tentative conclusion
that such streams will be considered a
‘‘simulcast multicast stream’’ and count
toward the host capacity limit
established herein. Accordingly, we
adopt our tentative conclusion that a
multicast stream that is a second (or
additional) simulcast of a primary
stream must be ‘‘substantially similar’’
to the 3.0 primary stream.42
Broadcasters largely support this
proposal,43 and no commenter objected
to it.44 We agree with broadcasters that
preserving 1.0 primary service is
critically important during the
transition period and that this relief
supports that goal.
24. We therefore affirm the earlier
Bureau decision approving this method
of mitigating 1.0 service loss and bring
such streams within the transition
licensing regime discussed herein
without the need for case-specific
STAs.45 We expect this situation will
arise only when an applicant intends to
broadcast in 3.0 on its own channel and
is unable to find a partner 1.0 host that
could, on its own, provide coverage of
its primary stream to 95 percent of the
applicant’s 1.0 service area.
primary programming), such proposals will require
the public interest showing under the nonexpedited processing standard. We expect this
situation will arise only when such streams are
aired on low-power TV 1.0 hosts.
42 Indeed, by definition as a second (or
additional) simulcast of a 3.0 primary stream, we
expect this stream will be identical to the simulcast
of the primary stream (which, by rule, must be
substantially similar to the 3.0 primary stream). See
47 CFR 73.3801(b)(1), 73.6029(b)(1), 74.782(b)(1). In
addition, we adopt our tentative conclusion that
this multicast stream, like all hosted streams, will
count toward the host capacity limit established in
this Order.
43 We note that ONE Media and ATBA contend
that this proposal does not go far enough and that
we should afford such an application expedited
processing. We reject this proposal. Considering
whether the use of a multicast stream to
supplement the primary stream is appropriate
requires consideration on a case-by-case basis. The
non-expedited process allows the Bureau to collect
additional information that will be used to ensure
the proposed use is in the public interest.
44 Although the WNUV STA called this stream a
‘‘supplemental primary ATSC 1.0 simulcast
stream,’’ we decline to use this term and emphasize
that, contrary to the argument advanced by ONE
Media, such a stream is a multicast stream and not
an additional primary stream. As a multicast
stream, this signal has no carriage rights.
Furthermore, as noted above, any service provided
by such a multicast stream beyond the station’s
NLSC is incidental and may not be considered for
securing any rights or benefits, now or in the future.
For example, we will reject a request by a
broadcaster to modify its market to add
communities based on the service of this multicast
stream.
45 As noted in that decision, applicants whose
applications are reviewed under the non-expedited
processing standard are required to minimize the
impact of the expected service loss, but the
Commission did not require a specific method for
doing so.
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Applications seeking to use a multicast
stream to supplement the service
provided by their primary stream will
be considered by the Media Bureau
under the process for non-expedited
applications.46
25. Contrary to our tentative
conclusion in the Next Gen TV
Multicast Licensing FNPRM, we do not
limit this relief only to NCE stations or
commercial stations airing multicast
streams on NCE partner hosts.47 The
Next Gen TV Multicast Licensing
FNPRM asked whether this approach
would be an acceptable method for
mitigating ATSC 1.0 service loss for any
other types or groups of applicants. No
commenter opposed extending this
relief to other types or groups of
applicants and we are persuaded by
broadcasters’ comments that other
similarly situated stations may be able
to show that their use of multicast
streams to minimize service loss of the
primary 1.0 stream is in the public
interest.48 We therefore allow any Next
Gen TV station to apply for this relief
under the non-expedited process, but
emphasize that all applicants must
demonstrate why this relief is in the
public interest and outweighs any
potential harms. As discussed in the
Next Gen TV Multicast Licensing
FNPRM, we recognize that each
programming stream devoted to
46 In the Next Gen TV Report and Order, the
Commission established a presumption that it
would favor grant of an application demonstrating
that the station would provide ATSC 1.0 simulcast
service to at least 95 percent of the predicted
population within the station’s original NLSC and
afford ‘‘expedited processing’’ to such applications.
A Next Gen TV applicant whose ATSC 1.0
simulcast signal will not satisfy this 95 percent
threshold (‘‘non-expedited applicant’’) will be
considered on a case-by-case basis and must
provide the following information: (1) whether
there is another possible simulcast partner(s) in the
market that would result in less 1.0 service loss to
existing viewers and, if so, why the Next Gen TV
broadcaster chose to partner with a station creating
a larger service loss; (2) what steps, if any, the
station plans to take to minimize the impact of the
1.0 service loss (e.g., providing ATSC 3.0 dongles,
set-top boxes, or gateway devices to viewers in the
loss area); and (3) the public interest benefits of the
simulcast arrangement and a showing of why the
station believes the benefit(s) of granting the
application outweigh the harm(s).
47 In proposing this approach, we supported the
Bureau’s prior decision, which found that
‘‘permitting NCE stations to participate in the ATSC
3.0 rollout arrangements in this manner is critical
to the success of the transition,’’ in large part
because NCE stations make up over 20% of all full
power broadcasters.
48 Pearl contends that ‘‘this [relief] is a
particularly good solution for various scenarios,
such as: small markets that are spectrum
constrained; geographically large markets with a
small population, like the Butte-Bozeman DMA in
Montana; and markets where some broadcasters
rely on a single full power station to serve the
market and other broadcasters have multiple
stations serving the same market, such as La CrosseEau Claire in Wisconsin or Birmingham, Alabama.’’
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simulcasting a primary stream is one
fewer that could be devoted to multicast
programming, potentially reducing the
diversity of programming available to
viewers in order to ensure the widest
availability of the most popular
programming. We also note that a
station airing its primary stream
programming on two hosts could be
reaching many viewers previously
outside its 1.0 footprint. Thus, the
Bureau must consider whether the
benefits of a given proposal outweigh
any harms, including any impacts on
localism, diversity of programming
offerings, and/or viewer confusion.
Finally, we emphasize that service
temporarily provided by a multicast
stream that is used as a second
simulcast of a primary stream will not
give rise to any rights for the broadcaster
or impose any obligations on MVPDs,
and may not be considered for purposes
of securing any rights or benefits, now
or in the future.
F. Ownership Issues
26. Consistent with our decision with
regard to hosted primary streams of
NextGen TV stations, hosting multicast
streams on a temporary host station’s
facility will not result in attribution
under our broadcast ownership rules or
for any other requirements related to
television stations attribution (e.g., filing
ownership reports). In the Next Gen TV
Multicast Licensing FNPRM, we asked
whether the temporary nature of the
exemption and our desire to minimize
viewer disruption while facilitating the
3.0 transition made the hosting of
multicast streams similar enough to the
hosting of primary streams to warrant
the same approach. We are persuaded
by the record that they do. Broadcaster
commenters support this approach,
maintaining that the hosting of
multicast streams would further the
same objectives as primary stream
hosting. Consistent with the need
articulated by broadcasters, we
emphasize that the new flexibility we
grant herein is intended to serve the
purpose of minimizing viewer
disruption, and we find that the clear
benefits of such an approach for viewers
outweigh any potential for abuse under
our ownership rules that some
commenters have raised. This decision
does not change the Commission’s
broadcast ownership rules in any
substantive way and certainly does not
alter the number of stations a
broadcaster can own in a particular
market. As discussed in the Next Gen
TV Multicast Licensing FNPRM, ATVA
and others have raised concerns in the
2018 Quadrennial Review proceeding
about the practical impact of the
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ownership rules in light of the growing
practice of placing Big-four network
programming on multicast streams. We
find that those concerns are best
addressed in the Quadrennial Review
context, not least because any decision
made in that proceeding with respect to
Big-four network affiliations will apply
to all licensed multicast streams, hosted
or otherwise.
G. Same-Service (or ‘‘Lateral’’) Hosting
27. We adopt our tentative conclusion
declining at this time to license same
service (or ‘‘lateral’’) hosting
arrangements, though we are open to
considering such arrangements in
limited circumstances. Same-service (or
‘‘lateral’’) 1.0 hosting refers to a
situation in which a Next Gen TV
station still operating its own facility in
1.0 and serving as a 1.0 host for another
Next Gen TV station that converted its
facility to 3.0 seeks to relocate one or
more of its own multicast streams to
another 1.0 host station. We are not
convinced that a general rule as
proposed that would permit this
practice is necessary to minimize viewer
disruption during the transition. Even
advocates for a rule concede that the
hypothetical problems it could resolve
would occur only rarely. Given the lack
of any demonstrated need to allow such
arrangements in all markets, we refrain
from adopting a general rule at this
time. Nonetheless, as discussed below,
we will entertain requests for special
temporary authority to permit 1.0 sameservice hosting and may revisit this
decision once we have more experience
with situations in which such flexibility
may be necessary to enable a market to
transition.49
28. BitPath and other commenters
contemplate scenarios in which
multiple Next Gen TV stations across a
market would shift streams from station
to station in order to facilitate their
move toward 3.0. For example,
broadcasters in the New York DMA (the
New York City market) have argued that
multiple stations engaging in sameservice hosting is a business necessity in
order to maximize the number of
stations willing to transition
simultaneously. On the current record,
however, there is no evidence that
same-service hosting is technically
necessary to make any market’s
transition possible. Indeed, there has
only been one instance in which a Next
Gen TV broadcaster sought Commission
approval to keep its facility in 1.0 while
shifting some 1.0 programming to a
49 We recognize that most broadcasters strongly
support lateral hosting, seeking maximum
flexibility under our licensing regime.
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host. That station and that market,
however, were ultimately able to begin
the transition without any ‘‘lateral’’
hosting, and the station also retained
enough capacity that it has since added
yet another 1.0 stream to its lineup.
29. Furthermore, there is potential for
abuse in a lateral hosting scenario,
particularly given the continuing
uncertainty around the ultimate
duration of the transition. For instance,
preventing the aggregation of excess
capacity in such a scenario would
require a more complex capacity
limitation rule than is supported by our
record. This is particularly true given
the need to consider not just
programming but any ancillary and
supplementary services being provided
over a station’s own facility. In the
absence of such protections, a station
relying on same-service hosts could
potentially use significantly more
capacity than is permitted under its
license, even while complying with the
capacity limit rule adopted today. The
record simply does not demonstrate that
creating such potential for confusion
and abuse is justified by any
countervailing need.
30. We will, however, consider
requests for special temporary authority
in those rare circumstances in which
relief may be necessary to ensure that a
market can transition effectively. We
expect that addressing any potential
issues using this process will allow us
to monitor the changing state of the
market as the transition moves forward
and to collect more information about
any situations that arise in which there
is a technical need for this type of
‘‘lateral’’ flexibility. Indeed, the STA
process provided valuable, real-world
information that helped inform our
decisions in this item. Finally,
broadcasters have argued in this
proceeding that the appropriate measure
of how much programming a 1.0 station
is capable of airing is whether any 1.0
station is airing or has previously aired
the same or a similar programming
lineup at the same resolutions. We agree
and we direct Media Bureau staff to
review and process any potential STA
requests (and the inherent potential of
any such requests to expand
broadcasters’ capacity as described
above) in light of this ‘‘historical’’
approach, which we have adopted
elsewhere in this Order to limit capacity
in the multicast hosting context.50
50 Such requests must clearly identify any
programming that would be discontinued in the
absence of an STA and explain why there is no
reasonable alternative to the requested reliance on
a same-service host and how viewer impacts will
be minimized (e.g., is the same stream available to
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Furthermore, as noted above, sameservice hosting is limited to a host
station’s multicast stream (i.e., a host
station’s own primary stream is not
eligible for lateral hosting). And while
the Media Bureau will have flexibility to
review the particular circumstances of
each case, we expect that staff will
consider the potential impact on overthe-air availability of programming that
has significant viewership (e.g., the
stream is ranked in the top 4 in the
market or would cause viewers to lose
their only source of noncommercial or
major network programming) or
specifically provides children’s
programming in the station’s service
area.
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H. Rules Applicable to Multicast
Streams Aired on a Host Station
31. With respect to the other ATSC
3.0 transition rules, except as detailed in
this Order, we will apply the same rules
to simulcast and non-simulcast licensed
multicast streams as we currently apply
to primary simulcast streams, consistent
with our tentative conclusions.51 These
rules are intended to protect consumers
from service disruption, especially the
loss of access to the 1.0 television
programming they currently watch,
without restricting broadcasters’ ability
to choose to participate in the voluntary,
market-driven transition to ATSC 3.0.
We believe these proposals best balance
the goal of preserving maximum
availability of multicast streams with
the reality that broadcasters could
simply decline to air multicast streams
if our rules are too burdensome.
32. Coverage rules. As proposed in the
Next Gen TV Multicast Licensing
FNPRM, we will apply the DMA and
community of license coverage
requirements to all multicast streams
but will not consider those streams
when determining whether a station
qualifies for expedited processing. Thus,
1.0 multicast streams aired on a host
channel must continue to cover the
viewers in any loss area from another station in the
same or adjacent market). STAs will be granted for
a period of 180 days and must be subsequently
renewed.
51 The rules at issue are those found in
§§ 73.3801, 73.6029, and 74.782 of the
Commission’s rules (each entitled ‘‘Television
Simulcasting’’). These include simulcast
arrangements and agreements (47 CFR 73.3801(a)
and (e), 73.6029(a) and (e), 74.782(a) and (f)); the
simulcasting requirement (47 CFR 73.3801(b),
73.6029(b), 74.782(b)); contour, DMA, and
community of license coverage requirements (47
CFR 73.3801(d) and (f)(5)–(6), 73.6029(d) and (f)(5)–
(6), 74.782(e) and (g)(5)–(6)); MVPD notice
requirements (47 CFR 73.3801(h), 73.6029(h),
74.782(i)); consumer education provisions (47 CFR
73.3801(g), 73.6029(g), 74.782(h)); and licensing
procedures (47 CFR 73.3801(f)(2), 73.6029(f)(2),
74.782(g)(2)). No commenters specifically addressed
these requirements.
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guest station’s entire community of
license and the host station must be
assigned to the same DMA as the
originating station.52 For 3.0 multicast
streams aired on a host channel, as with
3.0 primary streams aired on a host
channel, only the DMA requirement
applies.53 When determining whether a
station seeking to transition is eligible
for expedited processing, however, we
will continue to ask only whether the
primary stream will remain available in
1.0 to at least 95% of a station’s current
OTA audience.54
33. Although commenters generally
do not oppose this approach, some
commenters support variations to it. A
small number of broadcasters suggest
that the rule should require only a host
in the same DMA without a requirement
regarding the community of license.
They express concern that it will be
challenging in the future for stations to
find host partners that can fully cover
their community of license. ATVA, on
the other hand, contends that no station
should receive expedited processing
unless all of its multicast streams meet
the 95% coverage threshold or if the
station pledges to deliver signals to
MVPDs. We reject these proposals. With
respect to both of these concerns, we
emphasize that retaining a station’s 1.0
service to its community of license
remains our priority under current
marketplace conditions. We will review
each application—including any unique
characteristics of the market involved—
as it arises.
34. Finally, as proposed in the Next
Gen TV Multicast Licensing FNPRM, for
children’s programming on a multicast
stream to count toward the originating
station’s children’s television Core
Programming requirement, the multicast
stream must either be carried on the
same host as the originating station’s
primary stream or on a host that serves
at least 95% of the predicted population
served by the applicant’s pre-transition
1.0 signal. Commenters do not oppose
this proposal, although the Broadcasting
Alliance proposed that we combine
hosts of multiple ‘‘copies’’ of a multicast
stream to determine whether that stream
52 As proposed in the Next Gen TV Multicast
Licensing FNPRM and noted below in the
paragraphs discussing updates to Form 2100, Next
Gen TV applications must note the predicted
percentage of population within the station’s NLSC
that will be served by each multicast stream host.
53 No commenter specifically addressed this
proposal.
54 In the Next Gen TV Report and Order, the
Commission established a presumption that it
would favor grant of an application demonstrating
that the station would provide ATSC 1.0 simulcast
service to at least 95 percent of the predicted
population within the station’s original NLSC and
afford ‘‘expedited processing’’ to such applications.
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is reaching 95% of the relevant
population. While we do not bar
stations from airing identical content on
multiple hosted multicast streams, we
decline to adopt this alternative on the
grounds that it would incentivize
inefficient use of limited 1.0 capacity.
35. Licensing. As proposed in the
Next Gen TV Multicast Licensing
FNPRM, we will apply our licensing
process for primary simulcast streams to
guest multicast streams aired on a host
station.55 No commenter opposes this
proposal. Thus, upon grant of an
application, each of an originating
station’s multicast streams aired as a
guest stream on a host will be licensed
as an additional temporary channel of
the originating broadcaster. We also
adopt our unopposed tentative
conclusion that commonly owned
stations are not required to enter into
written agreements for the hosting of
either primary or multicast streams,
consistent with the process the Bureau
uses for handling the hosting of primary
streams on commonly owned stations.
36. Form 2100. We adopt the Next
Gen TV Multicast Licensing FNPRM’s
proposal to modify our Next Gen TV
license application form (FCC Form
2100) to accommodate multicast
licensing by collecting information
similar to that already collected in the
STA process.56 Broadcasters generally
support a requirement to file the same
information they currently provide
when seeking to transition, though other
commenters suggest the filing should be
more extensive. NAB asserts that
licensees should not have to file any
information at all about multicast
streams. We reject NAB’s argument. We
note that our rules do not prohibit the
use of private contractual arrangements
for partner stations to air their multicast
streams. For regulatory compliance
purposes, such streams would be
considered multicast streams of the host
partner station, not the originator
station. To the extent stations seek
instead to modify their license to
include multicast streams hosted by
partner stations, both the Commission
and the public need visibility into the
basic terms of that hosting relationship.
Such transparency will ensure
compliance with our rules, particularly
compliance with the host capacity limit
(see section III.D, above.). We therefore
55 Under these rules, a Next Gen TV station could
seek to obtain separate authorizations for each host
station used to air any programming stream and
would no longer be limited to the two
authorizations contemplated in the Next Gen TV
First Report and Order.
56 We direct the Media Bureau to revise Form
2100 as needed to implement these changes, and to
process applications filed using Form 2100.
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will require certain additional
information as an addendum to Form
2100 if stations seek to include hosted
multicast streams within their license.
We also clarify and slightly modify the
requirements of our rules governing
Form 2100 to reflect the possibility of
reliance on multiple hosts.
37. Specifically, applicants must
prepare an exhibit identifying each
proposed hosted stream and provide the
following information about each
stream, as broadcast:
• the host station;
• channel number (RF and virtual);
• network affiliation (or type of
programming if unaffiliated);
• resolution (e.g., 1080i, 720p, 480p,
or 480i);
• the predicted percentage of
population within the noise limited
service contour served by the station’s
original ATSC 1.0 signal that will be
served by the host, with a contour
overlay map identifying areas of service
loss and, in the case of 1.0 streams,
coverage of the originating station’s
community of license; and
• whether the stream will be
simulcast, and if so, the ‘‘paired’’ stream
in the other service.
Finally, the exhibit must either state
that the applicant will be airing the
same programming that it is airing in 1.0
at the time of the application or identify
the station that has aired or is airing the
same or a similar programming lineup at
the same resolutions on the same type
of facility (individual or shared), as well
as that station’s lineup (with
resolutions). This exhibit must be
placed on the applicant’s public website
or in the applicant’s online public
inspection file if the station does not
have a dedicated website,57 with a link
provided in the application. This
information is consistent both with that
currently collected in STA applications
and the approach identified in the Next
Gen TV Multicast Licensing FNPRM.58
As with broadcast licenses generally,
modifications to this license application
or its accompanying exhibit (with
respect to the primary or multicast
57 See https://publicfiles.fcc.gov/. If a station has
neither a public website nor an online public
inspection file, it will be considered in compliance
with this requirement if it publishes the exhibit in
a local newspaper identified in its application. Any
changes to the exhibit will require publication of
the revised exhibit.
58 While the Next Gen TV Multicast Licensing
FNPRM did not specifically mention identification
of the ‘‘pair’’ of each simulcast stream (that is, the
specific stream in the other service that is carrying
substantially similar programming), we believe the
need for this information logically arises from the
question about whether a stream will be simulcast
in situations where there is more than one
simulcast stream.
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streams) must be preceded by the filing
and approval of a new application.
Changes to the affiliation or content of
a stream, or the elimination of a stream,
however, do not implicate the concerns
raised in this proceeding if they would
not result in the use of additional
capacity and if information about the
change is easily available to the public.
Therefore, in order to streamline this
process for both broadcasters and the
Commission, such changes may be
implemented without prior Commission
approval. They need only be reflected in
a timely update to the exhibit that the
applicant makes available on its public
website or in the applicant’s online
public inspection file and in an email
notice to the Chief of the Media
Bureau’s Video Division.
38. Timing. As proposed in the Next
Gen TV Multicast Licensing FNPRM, the
rules adopted in this Order will apply
until and unless the Commission
eliminates the mandatory local
simulcasting requirement. Commenters
generally support this approach, which
will preserve existing 1.0 viewership
while giving broadcasters the flexibility
to transition to 3.0. MVPD commenters
support the proposed timing with
respect to simulcast multicast streams,
but propose that the rule permitting
non-simulcast 1.0 multicast streams
should sunset after five years.
Broadcasters oppose this proposal,
arguing it is contrary to the public
interest. We agree that establishing a
prescribed sunset for the non-simulcast
multicast licensing rules adopted in this
Order could lead to a sudden reduction
in the availability of 1.0 programming,
harming consumers. We therefore
decline to adopt a sunset of the nonsimulcast multicast and will continue to
encourage broadcasters to maximize
their 1.0 service throughout the
transition in order to minimize the
disruption to consumers.
I. Substantially Similar Rule
39. Based on the existing record, we
retain the substantially similar rule at
this time and extend the sunset date to
July 17, 2027.59 In the Sunsets FNRPM,
we sought comment on whether we
should retain the substantially similar
rule or permit it to sunset in July, 2023.
After consideration of the state of the
transition reflected in the record of this
proceeding, we find this rule continues
to be necessary at this time for the same
reasons it was adopted, to protect
consumers by ensuring that OTA
viewers who rely on 1.0 are able to
59 We note that the requirement to simulcast in
1.0 is intended to be temporary and will be
eliminated when the transition to 3.0 is complete.
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continue watching the same
programming they watch today, as well
as any new programming offerings on a
broadcaster’s primary channel that can
be reasonably provided in 1.0 format.60
Based on the current record, we find
that broadcasters’ market incentives
alone are insufficient to protect OTA
viewers from potential loss of 1.0
service. Furthermore, we find that there
has not yet been a sufficient shift in the
marketplace that would justify
elimination or modification of the
substantially similar rule. Moreover, we
see no evidence on the record that the
substantially similar rule is currently
impeding, or is likely in the near future
to impede, the provision of innovative
3.0 features and content. The rule as it
stands affords significant flexibility for
broadcasters to innovate and experiment
with new programming features using
3.0 technology because it does not
require broadcasters to duplicate
enhanced content or features that
cannot reasonably be provided in the
1.0 format. Furthermore, broadcasters
provide no reason why programming
aired on the 3.0 primary stream that can
reasonably be provided in 1.0 format
should not be provided in such format.
On the other hand, eliminating the
substantially similar rule at this time, in
light of the current state of the
transition, poses a risk of harm to OTA
viewers who rely on 1.0, particularly
vulnerable consumers, who without the
rule could be forced to either purchase
new 3.0 equipment or lose access to
stations’ primary programming.
40. The purpose of the substantially
similar rule is to give effect to the
underlying requirement to ‘‘simulcast’’
3.0 programming in 1.0, protecting 1.0
viewers from losing access to a Next
Gen TV station’s programming when
that station transitions its facility to 3.0.
While the underlying simulcast
requirement that a Next Gen TV
broadcaster must continue to air a
primary 1.0 signal (when deploying that
signal in 3.0) ensures 1.0 viewers
60 The Commission has explained that it will not
apply the substantially similar rule to certain
enhanced capabilities that cannot reasonably be
provided in ATSC 1.0 format. These capabilities
include ‘‘hyper-localized’’ content (e.g., geotargeted weather, targeted emergency alerts, and
hyper-local news), programming features or
improvements created for the 3.0 service (e.g.,
emergency alert ‘‘wake up’’ ability and interactive
programming features), enhanced formats made
possible by 3.0 technology (e.g., 4K or HDR), and
any personalization of programming performed by
the viewer and at the viewer’s discretion. While
some of these capabilities may be theoretically
possible within the ATSC 1.0 framework, they are
not currently part of the ATSC 1.0 standards, are
unlikely to be included in current consumer
equipment, and as such cannot reasonably be
provided via ATSC 1.0.
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continue to receive one free OTA TV
signal during the transition, the
substantially similar rule ensures that
1.0 viewers actually receive the same
primary programming as that aired on
the 3.0 channel, including new
programming to the extent that such
programming can reasonably be
provided in 1.0 format. Thus, these
rules work in tandem to ensure that
viewers are protected during the
transition period. As the Commission
explained in the 2017 First Next Gen TV
Report and Order, ‘‘it is important not
only to require that television
broadcasters continue to broadcast in
the current ATSC 1.0 standard while
ATSC 3.0 is being deployed, but also
that they continue to air in ATSC 1.0
format the programming that viewers
most want and expect to receive. We
seek to ensure that broadcasters air their
most popular, widely-viewed
programming on their 1.0 simulcast
channels so that viewers are not forced
to purchase 3.0 capable equipment
simply to continue to receive this
programming rather than because they
find the ATSC 3.0 technology
particularly attractive.’’
41. The record of this proceeding does
not provide a basis for us to conclude
that the substantially similar rule is no
longer needed at this time for the same
purposes it was originally adopted.
Without the substantially similar rule,
Next Gen TV broadcasters would be free
to air the most desirable programming,
including popular existing programming
and new program offerings that could
reasonably be provided in 1.0 format,
only on their 3.0 primary programming
stream. This could create two different
tiers of free, OTA television service,
which we find would not be in the
public interest.61 We agree with NCTA
61 In recognition of the capacity constraints
imposed by the transition, the Commission has
already given broadcasters flexibility with respect
to the resolution and coverage of 1.0 primary
streams, and the availability of 1.0 multicast
streams. In contrast to these situations, 1.0 capacity
constraints do not prevent the provision of
substantially similar programming, particularly
since Next Gen TV broadcasters are not required to
simulcast programming that cannot reasonably be
aired in 1.0 format. NAB contends the
Commission’s discussion of the potential
development of two tiers of programming ignores
that ‘‘[t]here already are two tiers of programming
service: pay and free.’’ NAB asserts that ‘‘the
Commission does not require other actors in the
communications marketplace, including those with
which broadcasters compete, to intentionally slow
the pace of innovation when they upgrade their
technology to avoid creating different tiers of
service.’’ NAB further states that ‘‘[b]roadcasters are
the only entities the Commission regulates that are
required to provide a free service.’’ We remind
broadcasters that, as trustees of the public airwaves,
they are required by statute to serve the ‘‘public
interest, convenience, and necessity.’’ 47 U.S.C.
309(k)(1). Next Gen TV stations may have only one
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and PK/OTI that this would ‘‘plac[e]
viewers at risk of losing access to
popular programming should they be
unwilling or unable to pay for this new
[3.0] equipment.’’ In particular, PL/OTI
notes that lower-income consumers
could be especially vulnerable.
Furthermore, at this stage of the
transition, we agree that many
consumers may find there to be a lack
of affordable 3.0 TV equipment.62
42. We find that broadcasters’ market
incentives alone cannot be relied upon
to ensure that all 1.0 viewers are able to
continue to access stations’ primary
programming without incurring
significant costs; this is particularly of
concern with respect to vulnerable
consumers who are often slow to adopt
new technology.63 We recognize that
broadcasters may have strong incentives
to offer substantially similar simulcast
programming early in the transition.
Broadcasters contend that the market
will protect all viewers, but as discussed
below these assertions often come with
qualifications and caveats. Broadcasters
have willingly made significant
investments in ATSC 3.0 technology,
claiming it is necessary to remain
competitive in the video marketplace.
Thus, while they do have incentives to
provide their most popular
programming to all of their viewers,
they also have incentives to promote
their ATSC 3.0 offerings. We recognize
that broadcasters do incur some costs by
offering programming in both 1.0 and
3.0 to ensure uninterrupted service to
current OTA viewers. If the transition
progresses and the number of OTA
viewers who rely on 1.0 declines,
broadcaster incentives to serve 1.0
viewers may weaken as the benefits
shrink relative to those costs. These
weakened incentives would be a direct
result of the success of the transition as
primary programming stream, which they are
required to simulcast in 1.0. Finally, we note that
broadcasters are not the only regulatees with public
interest obligations. For example, cable operators
and satellite carriers are required to carry qualified
broadcast stations that request mandatory carriage.
47 U.S.C. 338, 534, 535. Also, satellite carriers are
required to reserve a percentage of channel capacity
for noncommercial educational or informational
programming, 47 U.S.C. 335(b)(1); and cable
operators are required to set aside channel capacity
for commercial use by unaffiliated video
programmers. 47 U.S.C. 532.
62 The record indicates, as of August 8, 2022,
there were approximately 120 models of television
sets with 3.0 tuners available in the United States
from four manufacturers, but these are mid- to highend TV sets. According to Pearl, the lowest cost 3.0
TV set is available to consumers at retail for
$549.00. The lowest cost separate 3.0 receiver
(gateway device) is available at retail for $199.
63 We note that if it were true that broadcasters
have no incentive to favor their 3.0 offerings, then
our rule would simply codify broadcasters’
commitment and would not impede any
innovations.
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more and more OTA viewers migrate to
3.0. Some broadcasters state that they
have every incentive to ‘‘maximize’’
viewership, but those arguments more
correctly appear to focus on maximizing
profits, which will not necessarily
support the needs of OTA 1.0 viewers
for the length of the transition,
particularly when that audience is split
between two different services.64
Broadcaster commenters acknowledge
that even these incentives hold only
‘‘while the vast majority of viewers
continue to watch [1.0 signals].’’ Given
our decision herein to extend the sunset
date, the Commission can consider the
status of incentives based on the
viewership at the time the requirement
is set to expire. The current record
demonstrates that the substantially
similar element of the simulcast rule
remains important to the transition at
this time, in order to provide certainty
to those who continue to rely on 1.0.
43. Furthermore, most broadcasters
are not committing to make new
programming available to all viewers.
Indeed, many seem to indicate that, if
the substantially similar rule were
eliminated, they would provide new,
3.0-exclusive programming on their
primary streams even if such
programming could reasonably be
provided in 1.0 format.65 We recognize
that broadcasters are incurring costs by
simulcasting and are eager to complete
the transition to pursue higher OTA
viewership and new revenue
opportunities (via broadcast internet
services) in the long term. Thus, it is not
surprising that broadcasters are already
contemplating ‘‘trade-offs’’ like the ‘‘loss
or degradation of 1.0 programming’’ in
the near future absent regulatory
requirements to the contrary. Given the
above, and based on the current record,
we are not convinced market incentives
alone will protect viewers who rely on
1.0. Moreover, we remind broadcasters
that, as trustees of the public airwaves,
they have a statutory obligation to serve
the public interest, even where market
64 There is no evidence in the record regarding
the financial impact on broadcasters of losing a
declining number of 1.0 OTA viewers, particularly
older and lower income viewers who may not be
favored by advertisers. We also note that many
broadcasters receive significant revenue from
retransmission consent fees, which would not seem
to be directly impacted by any loss in OTA
viewership.
65 As discussed below, to the extent such 3.0
content cannot reasonably be provided in 1.0,
broadcasters are free to provide such programming
only in 3.0 under the current rule. However, if such
content can reasonably be provided in 1.0, then it
illustrates the benefits of the current rule for
viewers.
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incentives might temporarily push in a
contrary direction.66
44. Furthermore, we find that the
substantially similar rule is not
presently impeding innovation in
broadcast programming. Broadcasters
assert that the rule is preventing them
from innovating with 3.0 content and
features. However, nothing in the
current record supports this.67 The
current rule expressly allows
broadcasters to innovate and experiment
with new, innovative Next Gen TV
programming features, including on
their primary streams.68 Broadcasters
identify only two specific examples of
potential innovation hampered by the
rule, neither of which withstands
scrutiny. First, Pearl seems to suggest
that the rule prevents broadcasters from
airing
‘‘a ‘barker’ or demo channel of 3.0
programming, showcasing the new
technology and demonstrating how
viewers can unlock the many advanced
features that ATSC 3.0 makes possible.’’
We observe that a ‘‘demo channel’’
would presumably not be a station’s
primary stream.69 As for a multicast
stream, we reiterate our clarification
that any Next Gen TV station that
converts its own facility to 3.0
(including a 3.0 host) could air a
‘‘demo’’ multicast stream, including
content from its guest partners and other
stations in the market, without
simulcasting such a stream in 1.0.70
66 See 47 U.S.C. 309(a) (requiring the Commission
to determine, in the case of applications for
licenses, ‘‘whether the public interest, convenience,
and necessity will be served by granting such
application’’); 47 U.S.C. 307(b) (requiring the
Commission to ‘‘make such distribution of licenses,
frequencies, hours of operation, and of power
among the several States and communities as to
provide a fair, efficient, and equitable distribution
of radio service to each of the same’’).
67 Next Gen TV broadcasters do not have to
duplicate enhanced content or features that cannot
reasonably be provided in the 1.0 format. As stated
above, this includes: ‘‘hyper-localized’’ content
(e.g., geo-targeted weather, targeted emergency
alerts, and hyper-local news), programming features
or improvements created for the 3.0 service (e.g.,
emergency alert ‘‘wake up’’ ability and interactive
programming features), enhanced formats made
possible by 3.0 technology (e.g., 4K or HDR), and
any personalization of programming performed by
the viewer and at the viewer’s discretion.
68 Stations broadcasting in 3.0 over their own
facilities can experiment with innovative 3.0
multicast streams that are not subject to simulcast
requirements.
69 We note, however, that ‘‘demo’’ programming
aired on a primary stream would likely be covered
by the rule’s exception for ‘‘advertisements,
promotions for upcoming programs, and
programming features that are based on the
enhanced capabilities of ATSC 3.0.’’
70 To the extent that 3.0 guests can show good
cause why they need to license a ‘‘demo’’ channel
on a host (rather than having the host air such demo
channel), we will consider limited waiver requests
to license such non-simulcast 3.0 multicast guest
streams.
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Second, Graham seems to suggest that
the rule prevents broadcasters from
airing ‘‘alternate interactive
programming or expanded local
programming’’ only in 3.0. It is unclear
what Graham means by ‘‘expanded local
programming’’ as a unique 3.0 feature,
but the substantially similar rule
expressly permits ‘‘hyper-local news’’
and ‘‘interactive program features.’’ To
the extent any ‘‘expanded local
programming’’ provided on a primary
stream could reasonably be provided in
1.0 format, we agree such programming
must be simulcast in substantially
similar fashion in 1.0 format to comply
with the rule. However, to the extent
programming can reasonably be
provided in 1.0 format, we fail to see
how such programming could be
considered innovative programming
reliant on the enhanced capabilities of
3.0 technology.
45. As a result of the current status of
the transition reflected in the record, we
conclude that the sunset of the
substantially similar rule is unnecessary
at this time. We note, however, that the
pace of the transition has necessarily
been impacted by the recent pandemic.
As the transition continues and the
consumer equipment market evolves,
the impact of eliminating or modifying
the substantially similar requirement
may change. We therefore find that it
would be appropriate to revisit this
issue in the future once the transition
has had more time to advance.
Moreover, we anticipate that the
Commission’s recently announced
‘‘Future of TV’’ public-private initiative,
which will be led by the National
Association of Broadcasters (NAB), will
provide additional information on the
pace and nature of the transition. These
insights, including any proposals
discussed by partnership stakeholders
in this initiative, can help inform any
potential changes to the substantially
similar requirement. Accordingly, we
adopt a new sunset date of July 17,
2027. Given the ongoing transition, we
believe at this time that this is an
appropriate sunset period.71 This date
will allow for the opportunity of
material changes to the transition such
71 While, at present, a small number of converter
devices that work with the television sets in
viewers’ homes are available for purchase, we
expect more will come to market in coming years
and that the price should come down. For example,
another 3.0-to-1.0 set-top-box has recently been
announced by ADTH, which would be the lowest
priced converter device to date. According to
ADTH, its ‘‘NEXTGEN TV Box’’ is scheduled to
ship in July 2023. It costs $119.99, but it is available
for pre-order at the discounted price of $79.99 for
a limited time. The Commission can consider the
availability and cost of such devices in subsequent
reviews of the substantially similar rule.
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that a subsequent review is warranted.
Consistent with the previous sunset, the
Commission will initiate a review
approximately one year before the
requirement is set to expire to seek
comment on whether it should be
extended based on marketplace
conditions at that time. This balanced
approach will provide 1.0 viewers with
needed certainty while giving
broadcasters an additional opportunity
to demonstrate that the substantially
similar requirement should be
eliminated or modified.
J. Requirement To Comply With the
ATSC A/322 Standard
46. Based on the existing record, we
retain the A/322 requirement at this
time and extend the sunset date to July
17, 2027. In the Sunsets FNPRM, we
sought comment on whether we should
retain the requirement that Next Gen TV
broadcasters’ primary video
programming stream must comply with
the ATSC A/322 standard and, if so, for
how long. In response to the record, we
find the A/322 requirement remains
necessary to protect consumers and
other stakeholders. We further find that
the rule does not presently impede
broadcasters’ ability to innovate. As
discussed below, the record shows that
the standard itself provides broadcasters
with significant flexibility, and the
requirement to comply with the
standard applies only to a broadcaster’s
primary programming streams.
Consistent with the rule, broadcasters
have ample opportunity to innovate
with other broadcast streams, as well as
with non-broadcast 3.0 services (also
known as Broadcast Internet).
47. We find that the A/322
requirement remains essential at this
time for protecting both innovators and
investors in the 3.0 space, allowing
stakeholders to develop and purchase
equipment with confidence. As Pearl
TV notes, the rule gives ‘‘key certainty’’
to television receiver manufacturers,
affording them the confidence to build
Next Gen TV equipment and bring it to
market knowing that it will reliably
work with 3.0 signals now and in the
future. It likewise protects consumer
investments in 3.0 technology by
ensuring that 3.0 TV sets and other 3.0
equipment they purchase are, and will
remain, compatible with primary 3.0
signals. We agree with LG that
‘‘[c]onsumers have purchased ATSC 3.0enabled equipment with the good faith
expectation that it will be able to
properly receive and decode an ATSC
3.0 signal not just at the time of
purchase, but for years to come.’’ For
similar reasons, the rule will also
benefit MVPDs as they begin to receive
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and retransmit 3.0 broadcast signals to
their subscribers. Indeed, broadcasters
themselves benefit from the certainty
the rule provides, by knowing that every
viewer in their markets who purchases
a 3.0 set will be able to receive their
primary programming. Compliance with
A/322 may also help prevent harmful
interference to and by broadcasters,
which benefits every stakeholder and
consumer. Given these benefits, almost
all commenters support retention of the
A/322 rule. We agree with LG that ‘‘if
a broadcaster used a standard other than
A/322 for transmission of its primary
broadcast stream, consumers would be
unable to obtain the broadcaster’s
programming because support for that
bespoke standard would not be
incorporated into the consumers’
devices.’’
48. Furthermore, the record does not
demonstrate any current or likely harms
arising from the rule at this time. The
only commenter to oppose even an
extension of the requirement, One
Media, identifies no harms associated
with this specific rule and makes no
effort to grapple with its benefits.
Instead, One Media contends that
broadcasters should not have ‘‘to keep
coming back to seek government
approval each time the standard
changes’’ and should not have
‘‘standards codified into their services’
rules’’ but should instead simply be
required to avoid interference. With
respect to the first concern, the
Commission has and will independently
monitor the evolution of the ATSC 3.0
standard and will act to update our
rules as necessary and appropriate, as
we do in this Order. As for One Media’s
general objection to codified standards,
adoption of A/322 into our rules will
ensure that broadcasters are serving the
public interest, for the reasons above.
49. Ultimately, we find that the
current record does not support
sunsetting the A/322 standard at this
time. The rule currently provides
needed protection to consumers, while
also affording significant flexibility to
broadcasters. Nevertheless, we agree
with commenters that urge the
Commission to continue to monitor the
marketplace and the standard as they
develop.72 Accordingly, in order to
align this review with that of the
72 The Sunsets FNPRM sought comment on
whether to update our rules to incorporate the 2021
version of the A/322 standard. Commenters on this
issue support updating our rules, but pointed out
that a more recent version of A/322 was published
by ATSC in March 2022. However, since the
comment period closed, there have been two more
updates to A/322, and we have not received any
comments about this new version. Therefore, we
decline to update our rules at this time and will
seek comment on this issue in a future proceeding.
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substantially similar requirement, we
adopt a new sunset date of July 17,
2027. As noted above, the Commission
will initiate a review approximately one
year before the requirement is set to
expire to seek comment on whether it
should be extended based on
marketplace conditions at that time.
This balanced approach will provide
needed certainty while also providing
an additional opportunity to
demonstrate that the A/322 standard
should be eliminated or modified.
50. Digital Equity and Inclusion. The
Commission, as part of its continuing
effort to advance digital equity for all,73
including people of color, people with
disabilities, people who live in rural or
Tribal areas, and others who are or have
been historically underserved,
marginalized, or adversely affected by
persistent poverty or inequality, invites
comment on any equity-related
considerations 74 and benefits (if any)
that may be associated with the
proposals and issues discussed herein.
Specifically, we seek comment on how
our proposals may promote or inhibit
advances in diversity, equity, inclusion,
and accessibility, as well the scope of
the Commission’s relevant legal
authority.
IV. Procedural Matters
A. Final Regulatory Flexibility Analysis
(FRFA)
51. As required by the Regulatory
Flexibility Act of 1980 (RFA),75 as
amended, an Initial Regulatory
Flexibility Analysis (IRFA) was
incorporated in the Second Further
Notice of Proposed Rulemaking
(FNPRM) and Third FNPRM in this
73 Section 1 of the Communications Act of 1934
as amended provides that the FCC ‘‘regulat[es]
interstate and foreign commerce in communication
by wire and radio so as to make [such service]
available, so far as possible, to all the people of the
United States, without discrimination on the basis
of race, color, religion, national origin, or sex.’’ 47
U.S.C. 151.
74 The term ‘‘equity’’ is used here consistent with
Executive Order 13985 as the consistent and
systematic fair, just, and impartial treatment of all
individuals, including individuals who belong to
underserved communities that have been denied
such treatment, such as Black, Latino, and
Indigenous and Native American persons, Asian
Americans and Pacific Islanders and other persons
of color; members of religious minorities; lesbian,
gay, bisexual, transgender, and queer (LGBTQ+)
persons; persons with disabilities; persons who live
in rural areas; and persons otherwise adversely
affected by persistent poverty or inequality. See
Exec. Order No. 13985, 86 FR 7009, Executive
Order on Advancing Racial Equity and Support for
Underserved Communities Through the Federal
Government (January 20, 2021).
75 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601–
612, has been amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
(SBREFA), Public Law 104–121, Title II, 110 Stat.
857 (1996).
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proceeding. The Federal
Communications Commission
(Commission) sought written public
comment on the proposals in the
FNPRMs, including comment on the
IRFAs. The Commission received no
comments in response to either IRFA.
This present Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA.76
1. Need for, and Objectives of, the Third
Report and Order
52. In the first Next Gen TV Report
and Order, the Commission authorized
television broadcasters to use the Next
Gen TV transmission standard, also
called ‘‘ATSC 3.0’’ or ‘‘3.0,’’ on a
voluntary, market-driven basis. ATSC
3.0 is the new TV transmission standard
developed by the Advanced Television
Systems Committee as the world’s first
Internet Protocol (IP)-based broadcast
transmission platform. The Commission
determined in the Next Gen TV Report
and Order that broadcasters that deploy
ATSC 3.0 generally must continue to
deliver current-generation digital
television (DTV) service, using the
ATSC 1.0 transmission standard, also
called ‘‘ATSC 1.0’’ or ‘‘1.0,’’ to their
viewers through local simulcasting.
Specifically, the Commission required
full power and Class A TV stations
deploying ATSC 3.0 service to simulcast
the primary video programming stream
of their ATSC 3.0 channel in an ATSC
1.0 format.
53. The Commission determined in
the Next Gen TV Report and Order that
the local simulcasting requirement is
crucial to the deployment of Next Gen
TV service in order to minimize viewer
disruption. The Next Gen TV standard
is not backward-compatible with
existing TV sets or receivers, which
have only ATSC 1.0 and analog tuners.
This means that consumers will not be
able to view ATSC 3.0 transmissions on
their existing televisions without
additional equipment. Thus, it is critical
that Next Gen TV broadcasters continue
to provide service using the current
ATSC 1.0 standard while the
marketplace adopts devices compatible
with the new 3.0 transmission standard
in order to avoid either forcing viewers
to acquire new equipment or depriving
them of television service. A TV station
cannot, as a technical matter, broadcast
in both 1.0 and 3.0 format from the same
facility. Therefore, local simulcasting
will be effectuated through voluntary
partnerships that broadcasters that wish
to provide Next Gen TV service must
enter into with other broadcasters in
their local markets. Next Gen TV
broadcasters must partner with another
76 See
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television station (i.e., a temporary
‘‘host’’ station) in their local market to
either: (1) air an ATSC 3.0 channel at
the temporary host’s facility, while
using their original facility to continue
to provide an ATSC 1.0 simulcast
channel, or (2) air an ATSC 1.0
simulcast channel at the temporary
host’s facility, while converting their
original facility to the ATSC 3.0
standard in order to provide a 3.0
channel.
54. In this Third Report and Order, we
adopt changes to our ATSC 3.0 (3.0 or
Next Gen TV) rules considered in both
the Second FNPRM (or Multicast
Licensing FNPRM) and Third FNPRM
(or Sunsets FNPRM). In the first part of
this Order, the Commission generally
adopts the rules proposed in the Next
Gen TV Multicast Licensing FNPRM,
establishing a licensing regime for Next
Gen TV stations’ multicast streams that
are aired on host stations during the
transition period. These rules facilitate
and encourage Next Gen TV stations to
preserve consumer access to multicast
programming in 1.0 format during the
voluntary ATSC 3.0 transition. They
will provide the industry with
regulatory certainty about the legal
treatment of licensed multicast streams;
clarify that the originating station (and
not the host station) is responsible for
regulatory compliance regarding a
multicast stream being aired on a host
station; give the Commission clear
enforcement authority over the
originating station in the event of a rule
violation on the hosted multicast
programming stream; and facilitate NCE
stations’ 3.0 deployment by allowing
them to serve as hosts to commercial
stations’ multicast streams. The
Commission recognizes that allowing
Next Gen TV stations to seek
modification of their license to include
capacity on multiple host stations
represents a significant departure from
its present licensing regime. The
Commission finds that doing so is
appropriate because it is limited to the
temporary broadcast transition to 3.0
and to specific situations for which
there is a clear need.
55. In the second part of this Order,
the Commission retains the
substantially similar rule and
requirement to comply with the ATSC
A/322 standard until July 17, 2027. The
substantially similar rule requires that
the programming aired on a Next Gen
TV station’s ATSC 1.0 simulcast
channel be ‘‘substantially similar’’ to
that of the primary video programming
stream on the ATSC 3.0 channel.77 This
77 The substantially similar rule is independent of
the requirement for Next Gen TV broadcasters to
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means that the programming must be
the same, except for programming
features that are based on the enhanced
capabilities of ATSC 3.0 and promotions
for upcoming programs.78 In this Order,
the Commission finds that this rule
remains necessary to protect consumers
by ensuring that over-the-air (OTA)
viewers who rely on 1.0 are able to
continue watching the same
programming they watch today, as well
as any new programming offerings on a
broadcaster’s primary channel that can
be reasonably provided in 1.0 format.
The Commission finds that there has not
yet been a sufficient shift in the
marketplace that would justify
elimination or modification of the
substantially similar rule. The
requirement to comply with the ATSC
A/322 standard, which applies only to
Next Gen TV broadcasters’ primary
video programming stream, provides
certainty to consumers, television
receiver manufacturers, and MVPDs that
3.0 TV sets or other 3.0 TV equipment
will be able to receive all 3.0 primary
broadcast signals. In this Order, the
Commission finds that this rule remains
necessary at this time to protect
consumers and other stakeholders.
2. Summary of Significant Issues Raised
by Public Comments in Response to the
IRFA
56. There were no comments filed
that specifically addressed the rules and
policies proposed in the IRFA of either
the Second or Third FNPRM.
3. Response to Comments by the Chief
Counsel for Advocacy of the Small
Business Administration
57. Pursuant to the Small Business
Jobs Act of 2010, which amended the
RFA, the Commission is required to
respond to any comments filed by the
Chief Counsel for Advocacy of the Small
Business Administration (SBA), and to
provide a detailed statement of any
change made to the proposed rules as a
result of those comments.79
58. The Chief Counsel did not file any
comments in response to the proposed
rules in this proceeding.
simulcast in 1.0 format, a requirement that does not
have a sunset date.
78 Such enhanced content or features that cannot
reasonably be provided in ATSC 1.0 format include:
targeted advertisements, ‘‘hyper-localized’’ content
(e.g., geo-targeted weather, targeted emergency
alerts, and hyper-local news), programming features
or improvements created for the 3.0 service (e.g.,
emergency alert ‘‘wake up’’ ability and interactive
programming features), enhanced formats made
possible by 3.0 technology (e.g., 4K or HDR), and
any personalization of programming performed by
the viewer and at the viewer’s discretion.
79 5 U.S.C. 604(a)(3).
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4. Description and Estimate of the
Number of Small Entities to Which the
Rules Will Apply
59. The RFA directs agencies to
provide a description of, and where
feasible, an estimate of the number of
small entities that may be affected by
the rules adopted herein.80 The RFA
generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ 81 In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act.82 A small
business concern is one which: (1) is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the SBA.83 Below, we
provide a description of such small
entities, as well as an estimate of the
number of such small entities, where
feasible.
60. Television Broadcasting. This
industry is comprised of
‘‘establishments primarily engaged in
broadcasting images together with
sound.’’ These establishments operate
television broadcast studios and
facilities for the programming and
transmission of programs to the public.
These establishments also produce or
transmit visual programming to
affiliated broadcast television stations,
which in turn broadcast the programs to
the public on a predetermined schedule.
Programming may originate in their own
studio, from an affiliated network, or
from external sources. The SBA small
business size standard for this industry
classifies businesses having $41.5
million or less in annual receipts as
small. 2017 U.S. Census Bureau data
indicate that 744 firms in this industry
operated for the entire year. Of that
number, 657 firms had revenue of less
than $25,000,000.84 Based on this data
we estimate that the majority of
television broadcasters are small entities
80 5
U.S.C. 603(b)(3).
601(6).
601(3) (incorporating by reference the
definition of ‘‘small-business concern’’ in 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory
definition of a small business applies ‘‘unless an
agency, after consultation with the Office of
Advocacy of the Small Business Administration
and after opportunity for public comment,
establishes one or more definitions of such term
which are appropriate to the activities of the agency
and publishes such definition(s) in the Federal
Register.’’ 5 U.S.C. 601(3).
83 15 U.S.C. 632.
84 The available U.S. Census Bureau data does not
provide a more precise estimate of the number of
firms that meet the SBA size standard. We also note
that according to the U.S. Census Bureau glossary,
the terms receipts and revenues are used
interchangeably.
81 Id.
82 Id.
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under the SBA small business size
standard.
61. As of December 31, 2022, there
were 1,375 licensed commercial
television stations. Of this total, 1,282
stations (or 93.2%) had revenues of
$41.5 million or less in 2021, according
to Commission staff review of the
BIAKelsey Media Access Pro Online
Television Database (MAPro) on January
13, 2023, and therefore these licensees
qualify as small entities under the SBA
definition. In addition, the Commission
estimates as of December 31, 2022, there
were 383 licensed noncommercial
educational (NCE) television stations,
383 Class A TV stations, 1,912 LPTV
stations and 3,122 TV translator
stations. The Commission, however,
does not compile and otherwise does
not have access to financial information
for these television broadcast stations
that would permit it to determine how
many of these stations qualify as small
entities under the SBA small business
size standard. Nevertheless, given the
SBA’s large annual receipts threshold
for this industry and the nature of these
television station licensees, we presume
that all of these entities qualify as small
entities under the above SBA small
business size standard.
62. Wired Telecommunications
Carriers. The U.S. Census Bureau
defines this industry as establishments
primarily engaged in operating and/or
providing access to transmission
facilities and infrastructure that they
own and/or lease for the transmission of
voice, data, text, sound, and video using
wired communications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies. Establishments in this
industry use the wired
telecommunications network facilities
that they operate to provide a variety of
services, such as wired telephony
services, including VoIP services, wired
(cable) audio and video programming
distribution, and wired broadband
internet services. By exception,
establishments providing satellite
television distribution services using
facilities and infrastructure that they
operate are included in this industry.
Wired Telecommunications Carriers are
also referred to as wireline carriers or
fixed local service providers.85
85 Fixed Local Service Providers include the
following types of providers: Incumbent Local
Exchange Carriers (ILECs), Competitive Access
Providers (CAPs) and Competitive Local Exchange
Carriers (CLECs), Cable/Coax CLECs,
Interconnected VOIP Providers, Non-Interconnected
VOIP Providers, Shared-Tenant Service Providers,
Audio Bridge Service Providers, and Other Local
Service Providers. Local Resellers fall into another
U.S. Census Bureau industry group and therefore
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63. The SBA small business size
standard for Wired Telecommunications
Carriers classifies firms having 1,500 or
fewer employees as small. U.S. Census
Bureau data for 2017 show that there
were 3,054 firms that operated in this
industry for the entire year. Of this
number, 2,964 firms operated with
fewer than 250 employees.86
Additionally, based on Commission
data in the 2021 Universal Service
Monitoring Report, as of December 31,
2020, there were 5,183 providers that
reported they were engaged in the
provision of fixed local services. Of
these providers, the Commission
estimates that 4,737 providers have
1,500 or fewer employees.
Consequently, using the SBA’s small
business size standard, most of these
providers can be considered small
entities.
64. Cable Companies and Systems
(Rate Regulation). The Commission has
developed its own small business size
standard for the purpose of cable rate
regulation. Under the Commission’s
rules, a ‘‘small cable company’’ is one
serving 400,000 or fewer subscribers
nationwide. Based on industry data,
there are about 420 cable companies in
the U.S. Of these, only seven have more
than 400,000 subscribers. In addition,
under the Commission’s rules, a ‘‘small
system’’ is a cable system serving 15,000
or fewer subscribers. Based on industry
data, there are about 4,139 cable systems
(headends) in the U.S. Of these, about
639 have more than 15,000 subscribers.
Accordingly, the Commission estimates
that the majority of cable companies and
cable systems are small.
65. Cable System Operators (Telecom
Act Standard). The Communications
Act of 1934, as amended, contains a size
standard for a ‘‘small cable operator,’’
which is ‘‘a cable operator that, directly
or through an affiliate, serves in the
aggregate fewer than one percent of all
subscribers in the United States and is
not affiliated with any entity or entities
whose gross annual revenues in the
aggregate exceed $250,000,000.’’ For
purposes of the Telecom Act Standard,
the Commission determined that a cable
system operator that serves fewer than
677,000 subscribers, either directly or
through affiliates, will meet the
definition of a small cable operator
based on the cable subscriber count
established in a 2001 Public Notice.
Based on industry data, only six cable
system operators have more than
data for these providers is not included in this
industry.
86 The available U.S. Census Bureau data does not
provide a more precise estimate of the number of
firms that meet the SBA size standard.
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677,000 subscribers. Accordingly, the
Commission estimates that the majority
of cable system operators are small
under this size standard. We note
however, that the Commission neither
requests nor collects information on
whether cable system operators are
affiliated with entities whose gross
annual revenues exceed $250 million.87
Therefore, we are unable at this time to
estimate with greater precision the
number of cable system operators that
would qualify as small cable operators
under the definition in the
Communications Act.
66. Direct Broadcast Satellite (‘‘DBS’’)
Service. DBS service is a nationally
distributed subscription service that
delivers video and audio programming
via satellite to a small parabolic ‘‘dish’’
antenna at the subscriber’s location.
DBS is included in the Wired
Telecommunications Carriers industry
which comprises establishments
primarily engaged in operating and/or
providing access to transmission
facilities and infrastructure that they
own and/or lease for the transmission of
voice, data, text, sound, and video using
wired telecommunications networks.
Transmission facilities may be based on
a single technology or combination of
technologies. Establishments in this
industry use the wired
telecommunications network facilities
that they operate to provide a variety of
services, such as wired telephony
services, including VoIP services, wired
(cable) audio and video programming
distribution; and wired broadband
internet services.88 By exception,
establishments providing satellite
television distribution services using
facilities and infrastructure that they
operate are included in this industry.
67. The SBA small business size
standard for Wired Telecommunications
Carriers classifies firms having 1,500 or
fewer employees as small. U.S. Census
Bureau data for 2017 show that 3,054
firms operated in this industry for the
entire year. Of this number, 2,964 firms
operated with fewer than 250
87 The Commission does receive such information
on a case-by-case basis if a cable operator appeals
a local franchise authority’s finding that the
operator does not qualify as a small cable operator.
88 Included in this industry are: broadband
internet service providers (e.g., cable, DSL); local
telephone carriers (wired); cable television
distribution services; long-distance telephone
carriers (wired); closed-circuit television (CCTV)
services; VoIP service providers, using own
operated wired telecommunications infrastructure;
direct-to-home satellite system (DTH) services;
telecommunications carriers (wired); satellite
television distribution systems; and multichannel
multipoint distribution services (MMDS).
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employees.89 Based on this data, the
majority of firms in this industry can be
considered small under the SBA small
business size standard. According to
Commission data however, only two
entities provide DBS service—DIRECTV
(owned by AT&T) and DISH Network,
which require a great deal of capital for
operation. DIRECTV and DISH Network
both exceed the SBA size standard for
classification as a small business.
Therefore, we must conclude based on
internally developed Commission data,
in general DBS service is provided only
by large firms.
68. Satellite Master Antenna
Television (SMATV) Systems, also
known as Private Cable Operators
(PCOs). SMATV systems or PCOs are
video distribution facilities that use
closed transmission paths without using
any public right-of-way. They acquire
video programming and distribute it via
terrestrial wiring in urban and suburban
multiple dwelling units such as
apartments and condominiums, and
commercial multiple tenant units such
as hotels and office buildings. SMATV
systems or PCOs are included in the
Wired Telecommunications Carriers’
industry which includes wireline
telecommunications businesses. The
SBA small business size standard for
Wired Telecommunications Carriers
classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau
data for 2017 show that there were 3,054
firms in this industry that operated for
the entire year. Of this total, 2,964 firms
operated with fewer than 250
employees.90 Thus under the SBA size
standard, the majority of firms in this
industry can be considered small.
69. Home Satellite Dish (HSD)
Service. HSD or the large dish segment
of the satellite industry is the original
satellite-to-home service offered to
consumers and involves the home
reception of signals transmitted by
satellites operating generally in the Cband frequency. Unlike DBS, which
uses small dishes, HSD antennas are
between four and eight feet in diameter
and can receive a wide range of
unscrambled (free) programming and
scrambled programming purchased from
program packagers that are licensed to
facilitate subscribers’ receipt of video
programming. Because HSD provides
subscription services, HSD falls within
the industry category of Wired
Telecommunications Carriers. The SBA
small business size standard for Wired
89 The available U.S. Census Bureau data does not
provide a more precise estimate of the number of
firms that meet the SBA size standard.
90 The available U.S. Census Bureau data does not
provide a more precise estimate of the number of
firms that meet the SBA size standard.
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Telecommunications Carriers classifies
firms having 1,500 or fewer employees
as small. U.S. Census Bureau data for
2017 show that there were 3,054 firms
that operated for the entire year. Of this
total, 2,964 firms operated with fewer
than 250 employees.91 Thus, under the
SBA size standard, the majority of firms
in this industry can be considered
small.
70. Open Video Systems. The open
video system (OVS) framework was
established in 1996 and is one of four
statutorily recognized options for the
provision of video programming
services by local exchange carriers. The
OVS framework provides opportunities
for the distribution of video
programming other than through cable
systems. OVS operators provide
subscription services and therefore fall
within the SBA small business size
standard for the cable services industry,
which is ‘‘Wired Telecommunications
Carriers.’’ The SBA small business size
standard for this industry classifies
firms having 1,500 or fewer employees
as small. U.S. Census Bureau data for
2017 show that there were 3,054 firms
in this industry that operated for the
entire year. Of this total, 2,964 firms
operated with fewer than 250
employees.92 Thus, under the SBA size
standard the majority of firms in this
industry can be considered small.
Additionally, we note that the
Commission has certified some OVS
operators who are now providing
service and broadband service providers
(BSPs) are currently the only significant
holders of OVS certifications or local
OVS franchises. The Commission does
not have financial or employment
information for the entities authorized
to provide OVS however, the
Commission believes some of the OVS
operators may qualify as small entities.
71. Broadband Radio Service and
Educational Broadband Service.
Broadband Radio Service systems,
previously referred to as Multipoint
Distribution Service (MDS) and
Multichannel Multipoint Distribution
Service (MMDS) systems, and ‘‘wireless
cable,’’ 93 transmit video programming
to subscribers and provide two-way
high speed data operations using the
microwave frequencies of the
Broadband Radio Service (BRS) and
Educational Broadband Service (EBS)
91 The available U.S. Census Bureau data does not
provide a more precise estimate of the number of
firms that meet the SBA size standard.
92 The available U.S. Census Bureau data does not
provide a more precise estimate of the number of
firms that meet the SBA size standard.
93 The use of the term ‘‘wireless cable’’ does not
imply that it constitutes cable television for
statutory or regulatory purposes.
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(previously referred to as the
Instructional Television Fixed Service
(ITFS)). Wireless cable operators that
use spectrum in the BRS often
supplemented with leased channels
from the EBS, provide a competitive
alternative to wired cable and other
multichannel video programming
distributors. Wireless cable
programming to subscribers resembles
cable television, but instead of coaxial
cable, wireless cable uses microwave
channels.94
72. In light of the use of wireless
frequencies by BRS and EBS services,
the closest industry with a SBA small
business size standard applicable to
these services is Wireless
Telecommunications Carriers (except
Satellite). The SBA small business size
standard for this industry classifies a
business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for
2017 show that there were 2,893 firms
that operated in this industry for the
entire year. Of this number, 2,837 firms
employed fewer than 250 employees.95
Thus under the SBA size standard, the
Commission estimates that a majority of
licensees in this industry can be
considered small.
73. According to Commission data as
December 2021, there were
approximately 5,869 active BRS and
EBS licenses. The Commission’s small
business size standards with respect to
BRS involves eligibility for bidding
credits and installment payments in the
auction of licenses for these services.
For the auction of BRS licenses, the
Commission adopted criteria for three
groups of small businesses. A very small
business is an entity that, together with
its affiliates and controlling interests,
has average annual gross revenues
exceed $3 million and did not exceed
$15 million for the preceding three
years, a small business is an entity that,
together with its affiliates and
controlling interests, has average gross
revenues exceed $15 million and did
not exceed $40 million for the preceding
three years, and an entrepreneur is an
entity that, together with its affiliates
and controlling interests, has average
gross revenues not exceeding $3 million
94 Generally, a wireless cable system may be
described as a microwave station transmitting on a
combination of BRS and EBS channels to numerous
receivers with antennas, such as single-family
residences, apartment complexes, hotels,
educational institutions, business entities and
governmental offices. The range of the transmission
depends upon the transmitter power, the type of
receiving antenna and the existence of a line-ofsight path between the transmitter or signal booster
and the receiving antenna.
95 The available U.S. Census Bureau data does not
provide a more precise estimate of the number of
firms that meet the SBA size standard.
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for the preceding three years. Of the ten
winning bidders for BRS licenses, two
bidders claiming the small business
status won 4 licenses, one bidder
claiming the very small business status
won three licenses and two bidders
claiming entrepreneur status won six
licenses. One of the winning bidders
claiming a small business status
classification in the BRS license auction
has an active licenses as of December
2021.
74. The Commission’s small business
size standards for EBS define a small
business as an entity that, together with
its affiliates, its controlling interests and
the affiliates of its controlling interests,
has average gross revenues that are not
more than $55 million for the preceding
five (5) years, and a very small business
is an entity that, together with its
affiliates, its controlling interests and
the affiliates of its controlling interests,
has average gross revenues that are not
more than $20 million for the preceding
five (5) years. In frequency bands where
licenses were subject to auction, the
Commission notes that as a general
matter, the number of winning bidders
that qualify as small businesses at the
close of an auction does not necessarily
represent the number of small
businesses currently in service. Further,
the Commission does not generally track
subsequent business size unless, in the
context of assignments or transfers,
unjust enrichment issues are implicated.
Additionally, since the Commission
does not collect data on the number of
employees for licensees providing these
services, at this time we are not able to
estimate the number of licensees with
active licenses that would qualify as
small under the SBA’s small business
size standard.
75. Incumbent Local Exchange
Carriers (Incumbent LECs). Neither the
Commission nor the SBA have
developed a small business size
standard specifically for incumbent
local exchange carriers. Wired
Telecommunications Carriers is the
closest industry with an SBA small
business size standard. The SBA small
business size standard for Wired
Telecommunications Carriers classifies
firms having 1,500 or fewer employees
as small. U.S. Census Bureau data for
2017 show that there were 3,054 firms
in this industry that operated for the
entire year. Of this number, 2,964 firms
operated with fewer than 250
employees.96 Additionally, based on
Commission data in the 2021 Universal
Service Monitoring Report, as of
96 The available U.S. Census Bureau data does not
provide a more precise estimate of the number of
firms that meet the SBA size standard.
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December 31, 2020, there were 1,227
providers that reported they were
incumbent local exchange service
providers. Of these providers, the
Commission estimates that 929
providers have 1,500 or fewer
employees. Consequently, using the
SBA’s small business size standard, the
Commission estimates that the majority
of incumbent local exchange carriers
can be considered small entities.
76. Competitive Local Exchange
Carriers (LECs). Neither the Commission
nor the SBA has developed a size
standard for small businesses
specifically applicable to local exchange
services. Providers of these services
include several types of competitive
local exchange service providers.97
Wired Telecommunications Carriers is
the closest industry with a SBA small
business size standard. The SBA small
business size standard for Wired
Telecommunications Carriers classifies
firms having 1,500 or fewer employees
as small. U.S. Census Bureau data for
2017 show that there were 3,054 firms
that operated in this industry for the
entire year. Of this number, 2,964 firms
operated with fewer than 250
employees.98 Additionally, based on
Commission data in the 2021 Universal
Service Monitoring Report, as of
December 31, 2020, there were 3,956
providers that reported they were
competitive local exchange service
providers. Of these providers, the
Commission estimates that 3,808
providers have 1,500 or fewer
employees. Consequently, using the
SBA’s small business size standard,
most of these providers can be
considered small entities.
77. Radio and Television
Broadcasting and Wireless
Communications Equipment
Manufacturing. This industry comprises
establishments primarily engaged in
manufacturing radio and television
broadcast and wireless communications
equipment. Examples of products made
by these establishments are:
transmitting and receiving antennas,
cable television equipment, GPS
equipment, pagers, cellular phones,
mobile communications equipment, and
radio and television studio and
broadcasting equipment. The SBA small
business size standard for this industry
97 Competitive Local Exchange Service Providers
include the following types of providers:
Competitive Access Providers (CAPs) and
Competitive Local Exchange Carriers (CLECs),
Cable/Coax CLECs, Interconnected VOIP Providers,
Non-Interconnected VOIP Providers, Shared-Tenant
Service Providers, Audio Bridge Service Providers,
Local Resellers, and Other Local Service Providers.
98 The available U.S. Census Bureau data does not
provide a more precise estimate of the number of
firms that meet the SBA size standard.
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classifies businesses having 1,250
employees or less as small. U.S. Census
Bureau data for 2017 show that there
were 656 firms in this industry that
operated for the entire year. Of this
number, 624 firms had fewer than 250
employees.99 Thus, under the SBA size
standard, the majority of firms in this
industry can be considered small.
78. Audio and Video Equipment
Manufacturing. This industry comprises
establishments primarily engaged in
electronic audio and video equipment
for home entertainment, motor vehicles,
and public address and musical
instrument amplification. Examples of
products made by these establishments
are video cassette recorders, televisions,
stereo equipment, speaker systems,
household-type video cameras,
jukeboxes, and amplifiers for musical
instruments and public address systems.
The SBA small business size standard
for this industry classifies firms with
750 employees or less as small.
According to 2017 U.S. Census Bureau
data, 464 firms in this industry operated
that year. Of this number, 399 firms
operated with less than 250
employees.100 Based on this data and
the associated SBA size standard, we
conclude that the majority of firms in
this industry are small.
5. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
79. The Order modifies our Next Gen
TV licensing processes to include
additional reporting, recordkeeping, and
other compliance for small entities that
seek to include hosted multicast streams
within their license. While the
Commission is not in a position to
determine whether small entities will
have to hire professionals to comply
with our decisions and cannot quantify
the cost of compliance for small entities,
as discussed in the Order, the
approaches we have taken to implement
the requirements for Next Gen TV
multicasting have minimal cost
implications for impacted entities.
80. As discussed in section A of this
FRFA, this Order establishes a licensing
99 The available U.S. Census Bureau data does not
provide a more precise estimate of the number of
firms that meet the SBA size standard.
100 The available U.S. Census Bureau data does
not provide a more precise estimate of the number
of firms that meet the SBA size standard. We also
note that the U.S. Census Bureau withheld
publication of the number of firms that operated for
the entire year and the number of firms that
operated with 5 to 9 employees, to avoid disclosing
data for individual companies (see Cell Notes for
‘‘Firms operated for the entire year’’ and ‘‘Firms
operated for the entire year with 5 to 9 employees’’).
Therefore, the number of firms with employees that
meet the SBA size standard would be higher that
noted herein.
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regime for Next Gen TV stations’
multicast streams that are aired on host
stations (as guest streams) during the
transition period. The Order applies the
licensing process for primary simulcast
streams to guest multicast streams.
Thus, Next Gen TV broadcasters that
choose to deploy ATSC 3.0 service and
seek to license guest multicast streams
aired on a host station are subject to
certain reporting, recordkeeping, or
other compliance requirements.
81. A Next Gen TV broadcaster
seeking to license one or more guest
multicast streams aired on a host station
(multicast license applicant) is subject
to the host capacity limit (discussed in
section III.D. of this Order). That is, a
Next Gen TV station may not use more
1.0 host capacity than it could have
used if it were still broadcasting in 1.0
on its own facilities. A multicast license
applicant is also subject to most
requirements applicable to primary
streams, including rules concerning
signal coverage, simulcast agreements,
MVPD notice and on-air consumer
notice requirements for each guest
multicast stream (discussed in section
III.H. of this Order).
82. All multicast license applicants,
including small entities, must file an
application (Form 2100) to modify its
license with the Commission and
receive prior Commission approval.
This requires the applicant must
prepare an exhibit identifying each
guest stream and provide the following
information about each stream, as
broadcast: the host station; channel
number (RF and virtual); network
affiliation (or type of programming if
unaffiliated); resolution (e.g., 1080i,
720p, 480p, or 480i); the predicted
percentage of population within the
noise limited service contour served by
the station’s original ATSC 1.0 signal
that will be served by the host, with a
contour overlay map identifying areas of
service loss and, in the case of 1.0
streams, coverage of the originating
station’s community of license; and
whether the stream will be simulcast,
and if so, the ‘‘paired’’ stream in the
other service. Finally, the exhibit must
either state that the applicant will be
airing the same programming that it is
airing in 1.0 at the time of the
application or identify the station that
has aired or is airing the same or a
similar programming lineup at the same
resolutions on the same type of facility
(individual or shared), as well as that
station’s lineup (with resolutions). This
exhibit must be placed on the
applicant’s public website, with a link
provided in the application.
83. The Order also retains for another
four years two existing compliance
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requirements for all stations, including
small entities, and eliminates the sunset
dates for these requirements. The Order
retains the ‘‘substantially similar’’ rule
(see section III.I. of this Order). This rule
requires that the programming aired on
a Next Gen TV station’s ATSC 1.0
simulcast channel be ‘‘substantially
similar’’ to that of the primary video
programming stream on the ATSC 3.0
channel. This means that the
programming must be the same, except
for programming features that are based
on the enhanced capabilities of ATSC
3.0, including targeted advertisements,
and promotions for upcoming programs.
This rule will now expire in 2027absent
Commission action. The Order retains
the requirement to comply with the
ATSC A/322 standard (‘‘Physical Layer
Protocol’’) (A/322) (see section III.J of
this Order), which is the standard that
defines the waveforms that ATSC 3.0
signals may take. The requirement to
comply with A/322 will now expire in
2027 absent Commission action.
6. Steps Taken To Minimize Significant
Economic Impact on Small Entities and
Significant Alternatives Considered
84. The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
approach, which may include the
following four alternatives (among
others): ‘‘(1) the establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance and reporting requirements
under the rule for such small entities;
(3) the use of performance rather than
design standards; and (4) an exemption
from coverage of the rule, or any part
thereof, for small entities.’’ 101
85. The Commission has authorized
television broadcasters to use the Next
Gen TV (ATSC 3.0) standard on a
voluntary, market-driven basis. As
observed in the Final Regulatory
Flexibility Analysis of the 2017 First
Next Gen TV Report and Order, this
means that broadcasters decide whether
(and if so when) to deploy ATSC 3.0
service and bear the costs associated
with such deployment. All broadcasters,
including small entities, will need to
undertake any costs or burdens
associated with ATSC 3.0 service
should they choose to do so.
86. The rules concerning multicast
licensing provide increased flexibility to
broadcasters without imposing
additional obligations. By expanding the
ability of broadcasters to place licensed
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U.S.C. 603(c)(1)–(c)(4).
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streams on additional host partners, the
rules may allow small broadcast entities
transitioning to ATSC 3.0 to experience
positive economic impacts through
partnerships with unaffiliated third
parties. NCE television stations in
particular, both large and small, will
experience positive benefits from the
rules, which could improve their ability
to participate in the transition to Next
Gen TV. Although we intended to limit
certain simulcast multicast stream relief
only to NCE stations or commercial
stations airing multicast streams on NCE
partner hosts, we will instead allow any
Next Gen TV station to apply for this
relief under the non-expedited process,
but emphasize that all applicants,
including small entities, must
demonstrate why this relief is in the
public interest and outweighs any
potential harms. In addition, the
multicast licensing approach minimizes
administrative burdens for all
broadcasters, including small
broadcasters. The rules streamline the
current process whereby broadcasters
request special temporary authority on a
case-by-case basis. We also considered
concerns regarding the potential abuse
of these rules in that the multicast
streams may allow stations to evade
local ownership rules. Consistent with
our previous decisions, hosting
multicast streams on a temporary host
station’s facility will not result in any
additional requirements for small
entities related to television stations
attribution (e.g., filing ownership
reports). In finding that it is appropriate
to limit a Next Gen TV station’s 1.0 host
capacity to that which it could deploy
on its own 1.0 channel, we determined
that other alternatives related to
proposed capacity limits would be
overly restrictive to all stations,
including small entities, and that the
best metric will be the number and
resolution of streams actually airing (or
that previously actually aired) on
specific 1.0 facilities. In retaining the
rules that require stations, including
small entities, to broadcast substantially
similar programing to their primary
streams, we rejected the alternatives
presented by broadcasters that argued
that market incentives would ensure
OTA viewers have access to this
programming.
7. Report to Congress
87. The Commission will send a copy
of the Third Report and Order,
including this FRFA, in a report to be
sent to Congress pursuant to the
Congressional Review Act.102 In
102 See
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5 U.S.C. 801(a)(1)(A).
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Federal Register / Vol. 88, No. 135 / Monday, July 17, 2023 / Rules and Regulations
addition, the Commission will send a
copy of the Third Report and Order,
including this FRFA, to the Chief
Counsel for Advocacy of the SBA. The
Order and FRFA (or summaries thereof)
will also be published in the Federal
Register.103
B. Final PRA Analysis
88. This document contains new
information collection requirements
subject to the Paperwork Reduction Act
of 1995 (PRA).104 The requirements will
be submitted to the Office of
Management and Budget (OMB) for
review under Section 3507(d) of the
PRA. OMB, the general public, and
other Federal agencies will be invited to
comment on the information collection
requirements contained in this
proceeding. The Commission will
publish a separate document in the
Federal Register at a later date seeking
these comments. In addition, we note
that pursuant to the Small Business
Paperwork Relief Act of 2002
(SBPRA),105 we will seek specific
comment on how the Commission might
further reduce the information
collection burden for small business
concerns with fewer than 25 employees.
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C. Congressional Review Act
89. The Bureau has determined, and
the Administrator of the Office of
Information and Regulatory Affairs,
Office of Management and Budget,
concurs that these rules are non-major
under the Congressional Review Act, 5
U.S.C. 804(2). The Commission will
send a copy of this Third Report and
Order to Congress and the Government
Accountability office, pursuant to 5
U.S.C. 801(a)(1)(A).
V. Ordering Clauses
90. It is ordered, pursuant to the
authority found in sections 1, 4, 7, 301,
303, 307, 308, 309, 316, 319, 325(b),
336, 338, 399b, 403, 534, and 535 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 154, 157, 301,
303, 307, 308, 309, 316, 319, 325(b),
336, 338, 399b, 403, 534, and 535, this
Third Report and Order is hereby
adopted, effective thirty (30) days after
the date of publication in the Federal
Register.
91. It is further ordered that the
Commission’s rules are hereby amended
as set forth in Appendix B of the Third
103 See
id. 604(b).
Paperwork Reduction Act of 1995 (PRA),
Public Law 104–13, 109 Stat. 163 (1995) (codified
in Chapter 35 of title 44 U.S.C.).
105 The Small Business Paperwork Relief Act of
2002 (SBPRA), Public Law 107–198, 116 Stat. 729
(2002) (codified in Chapter 35 of title 44 U.S.C.).
See 44 U.S.C. 3506(c)(4).
104 The
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Report and Order and will become
effective 30 days after publication in the
Federal Register, except for 47 CFR
73.3801, 73.6029, and 74.782 which
contain new or modified information
collection requirements that require
approval by the OMB under the PRA
and which shall become effective after
the Commission publishes a notice in
the Federal Register announcing OMB
approval and the effective date of the
rules.
92. It is further ordered that, pursuant
to 47 U.S.C. 155(c), the Chief, Media
Bureau, is granted delegated authority
for the purpose of amending FCC Form
2100 as necessary to implement the
licensing process adopted herein.
93. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Third Report and Order, including
the Initial and Final Regulatory
Flexibility Analyses, to the Chief
Counsel for Advocacy of the Small
Business Administration.
94. It is further ordered, that pursuant
to section 801(a)(1)(A) of the
Congressional Review Act, 5 U.S.C.
801(a)(1)(A), the Commission shall send
a copy of this Third Report and Order
to Congress and to the Government
Accountability Office.
List of Subjects in 47 CFR Parts 73 and
74
Communications equipment,
Television.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR parts 73
and 74 as follows:
PART 73—RADIO BROADCAST
SERVICES
1. The authority citation for part 73
continues to read as follows:
■
Authority: 47 U.S.C. 154, 155, 301, 303,
307, 309, 310, 334, 336, 339.
§ 73.682
[Amended]
2. Amend § 73.682 by:
a. Lifting the stay on paragraph
(f)(2)(iii) published on April 5, 2023 (88
FR 20076).
■ b. In paragraph (f)(2)(iii), removing the
date ‘‘March 6, 2023’’ and adding, in its
place, ‘‘July 17, 2027’’.
■ c. Removing Note 2 to § 73.682.
■ 3. Amend § 73.3801 by:
■
■
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a. In paragraph (b)(3), by removing the
date ‘‘July 17, 2023’’ and adding in its
place ‘‘July 17, 2027’’;
■ b. Revising paragraphs (f)(5) and (6);
and
■ c. Adding paragraph (i).
The revisions and addition read as
follows:
■
§ 73.3801 Full power television
simulcasting during the ATSC 3.0 (Next Gen
TV) transition.
*
*
*
*
*
(f) * * *
(5) Expedited processing. An
application filed in accordance with the
streamlined process in paragraph (f)(3)
of this section will receive expedited
processing provided, for stations
requesting to air an ATSC 1.0 primary
signal on the facilities of a host station,
that station will provide ATSC 1.0
service to at least 95 percent of the
predicted population within the noise
limited service contour of its original
ATSC 1.0 facility.
(6) Required information. (i) An
application in paragraph (f)(2) of this
section must include the following
information:
(A) The station or stations serving as
the host or hosts, identified by call sign
and facility identification number, if
applicable;
(B) The technical facilities of each
host station, if applicable;
(C) The DMA of the originating
broadcaster’s facility and the DMA of
each host station, if applicable;
(D) A web link to the exhibit
described in paragraph (i) of this
section, if applicable; and
(E) Any other information deemed
necessary by the Commission to process
the application.
(ii) If an application in paragraph
(f)(2) of this section includes a request
to air an ATSC 1.0 signal on the
facilities of a host station or stations, the
broadcaster must, in addition to the
information in paragraph (f)(6)(i) of this
section, also indicate on the application:
(A) The predicted population within
the noise limited service contour served
by the station’s original ATSC 1.0
signal;
(B) The predicted population within
the noise limited service contour served
by the station’s original ATSC 1.0 signal
that will lose the station’s ATSC 1.0
service as a result of the hosting
arrangement or arrangements, including
identifying areas of service loss by
providing a contour overlap map; and
(C) Whether the ATSC 1.0 primary
stream simulcast signal aired on the
host station will serve at least 95
percent of the population in paragraph
(f)(6)(ii)(A) of this section.
*
*
*
*
*
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(i) Multicast streams. A Next Gen TV
station is not required to license, under
paragraph (f) of this section, a ‘‘guest’’
multicast programming stream that it
originates and which is aired on a host
station. If it chooses to do so, it and each
of its licensed guest multicast streams
must comply with the requirements of
this section (including those otherwise
applicable only to primary streams),
except for paragraph (f)(5) of this section
and as otherwise provided in this
paragraph. For purposes of this section,
a ‘‘multicast’’ stream refers to a video
programming stream other than the
primary video programming stream.
(1) 1.0 Multicast streams. A Next
Gen TV station may license its guest
ATSC 1.0 multicast stream(s) aired on
one or more ATSC 1.0 hosts pursuant to
paragraph (f) of this section. Nonsimulcast streams are not required to
comply with paragraph (b) of this
section.
(i) Host capacity limit. A Next Gen TV
station that has converted its own
facility to 3.0 must not license more
capacity on one or more partner host
stations, in the aggregate, than the
station could use if it were still
operating on its own facility in 1.0. It
must demonstrate compliance with this
limit in its license application exhibit.
(ii) [Reserved]
(2) 3.0 Multicast streams. A Next
Gen TV station may license its guest
ATSC 3.0 multicast stream(s) aired on
one or more ATSC 3.0 hosts pursuant to
paragraph (f) of this section.
(3) Children’s television. A Next Gen
TV station may rely on a multicast
stream it is airing via a host partner to
comply with the Commission’s
children’s television programming
requirement in § 73.671. Such a stream
must either be carried on the same host
as the Next Gen TV station’s primary
stream, or on a host that serves at least
95 percent of the predicted population
served by the Next Gen TV station’s pretransition 1.0 signal.
(4) Application exhibit required. A
Next Gen TV station seeking to license
hosted multicast streams must prepare
and host on its public website (or its
Online Public Inspection File if the
station does not have a dedicated
website) the exhibit referenced in
paragraph (f)(6)(i)(D) of this section. The
exhibit must contain the following:
(i) For each hosted stream: channel
number (RF and virtual); network
affiliation (or type of programming if
unaffiliated); resolution (e.g., 1080i,
720p, 480p, or 480i); whether the stream
will be simulcast; and if so, the identity
of the paired stream in the other service;
and
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(ii) For a station that has converted its
own facility to 3.0, the exhibit must also
demonstrate compliance with the host
capacity limit. It may do so by either
showing that it is seeking hosting only
for streams it was broadcasting on its
own 1.0 facility prior to its transition to
3.0, or identifying another 1.0 station
that is carrying or has carried the same
or a similar programming lineup at the
same resolutions on the same type of
facility (individual or shared);
(iii) For a station that has converted
its own facility to 3.0, the exhibit must
also demonstrate compliance with the
coverage requirement for guest multicast
streams, including by providing a
contour map showing the guest
multicast stream will continue to serve
the station’s community of license; and
(iv) Changes to the exhibit. Changes to
the affiliation or content of a stream that
would not result in the use of additional
capacity, the elimination of a stream, or
non-substantive corrections may be
made at the discretion of the applicant
but must be reflected in a timely update
to the existing public exhibit and an
emailed notice to the Chief of the Media
Bureau’s Video Division or their
designee. No other changes, including to
the location of the exhibit itself, may be
made without the filing and approval of
a new application.
■ 4. Amend § 73.6029 by:
■ a. In paragraph (b)(3), remove the date
‘‘July 17, 2023’’ and add, in its place,
‘‘July 17, 2027’’;
■ b. Revising paragraphs (f)(5) and (6);
and
■ c. Adding paragraph (i).
The revisions and addition read as
follows:
§ 73.6029 Class A television simulcasting
during the ATSC 3.0 (Next Gen TV)
transition.
*
*
*
*
*
(f) * * *
(5) Expedited processing. An
application filed in accordance with the
streamlined process in paragraph (f)(3)
of this section will receive expedited
processing provided, for stations
requesting to air an ATSC 1.0 primary
signal on the facilities of a host station,
that station will provide ATSC 1.0
service to at least 95 percent of the
predicted population within the noise
limited service contour of its original
ATSC 1.0 facility.
(6) Required information. (i) An
application in paragraph (f)(2) of this
section must include the following
information:
(A) The station or stations serving as
the host or hosts, identified by call sign
and facility identification number, if
applicable;
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Fmt 4700
Sfmt 4700
45367
(B) The technical facilities of each
host station, if applicable;
(C) The DMA of the originating
broadcaster’s facility and the DMA of
each host station, if applicable;
(D) A web link to the exhibit
described in paragraph (i) of this
section, if applicable; and
(E) Any other information deemed
necessary by the Commission to process
the application.
(ii) If an application in paragraph
(f)(2) of this section includes a request
to air an ATSC 1.0 signal on the
facilities of a host station or stations, the
broadcaster must, in addition to the
information in paragraph (f)(6)(i) of this
section, also indicate on the application:
(A) The predicted population within
the noise limited service contour served
by the station’s original ATSC 1.0
signal;
(B) The predicted population within
the noise limited service contour served
by the station’s original ATSC 1.0 signal
that will lose the station’s ATSC 1.0
service as a result of the hosting
arrangement or arrangements, including
identifying areas of service loss by
providing a contour overlap map; and
(C) Whether the ATSC 1.0 primary
stream simulcast signal aired on the
host station will serve at least 95
percent of the population in paragraph
(f)(6)(ii)(A) of this section.
*
*
*
*
*
(i) Multicast streams. A Next Gen TV
station is not required to license, under
paragraph (f) of this section, a ‘‘guest’’
multicast programming stream that it
originates and which is aired on a host
station. If it chooses to do so, it and each
of its licensed guest multicast streams
must comply with the requirements of
this section (including those otherwise
applicable only to primary streams),
except for paragraph (f)(5) of this section
and as otherwise provided in this
paragraph. For purposes of this section,
a ‘‘multicast’’ stream refers to a video
programming stream other than the
primary video programming stream.
(1) 1.0 Multicast streams. A Next
Gen TV station may license its guest
ATSC 1.0 multicast stream(s) aired on
one or more ATSC 1.0 hosts pursuant to
paragraph (f) of this section. Nonsimulcast streams are not required to
comply with paragraph (b) of this
section.
(i) Host capacity limit. A Next Gen TV
station that has converted its own
facility to 3.0 must not license more
capacity on one or more partner host
stations, in the aggregate, than the
station could use if it were still
operating on its own facility in 1.0. It
must demonstrate compliance with this
limit in its license application exhibit.
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(2) 3.0 Multicast streams. A Next
Gen TV station may license its guest
ATSC 3.0 multicast stream(s) aired on
one or more ATSC 3.0 hosts pursuant to
paragraph (f) of this section.
(3) Children’s television. A Next Gen
TV station may rely on a multicast
stream it is airing via a host partner to
comply with the Commission’s
children’s television programming
requirement in § 73.671. Such a stream
must either be carried on the same host
as the Next Gen TV station’s primary
stream, or on a host that serves at least
95 percent of the predicted population
served by the Next Gen TV station’s pretransition 1.0 signal.
(4) Application exhibit required. A
Next Gen TV station seeking to license
hosted multicast streams must prepare
and host on its public website (or its
Online Public Inspection File if the
station does not have a dedicated
website) the exhibit referenced in
paragraph (f)(6)(i)(D) of this section. The
exhibit must contain the following:
(i) For each hosted stream: channel
number (RF and virtual); network
affiliation (or type of programming if
unaffiliated); resolution (e.g., 1080i,
720p, 480p, or 480i); whether the stream
will be simulcast; and if so, the identity
of the paired stream in the other service;
and
(ii) For a station that has converted its
own facility to 3.0, the exhibit must also
demonstrate compliance with the host
capacity limit. It may do so by either
showing that it is seeking hosting only
for streams it was broadcasting on its
own 1.0 facility prior to its transition to
3.0, or identifying another 1.0 station
that is carrying or has carried the same
or a similar programming lineup at the
same resolutions on the same type of
facility (individual or shared);
(iii) For a station that has converted
its own facility to 3.0, the exhibit must
also demonstrate compliance with the
coverage requirement for guest multicast
streams, including by providing a
contour map showing the guest
multicast stream will continue to serve
the station’s community of license; and
(iv) Changes to the exhibit. Changes to
the affiliation or content of a stream that
would not result in the use of additional
capacity, the elimination of a stream, or
non-substantive corrections may be
made at the discretion of the applicant
but must be reflected in a timely update
to the existing public exhibit and an
emailed notice to the Chief of the Media
Bureau’s Video Division or their
designee. No other changes, including to
the location of the exhibit itself, may be
made without the filing and approval of
a new application.
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PART 74—EXPERIMENTAL RADIO,
AUXILIARY, SPECIAL BROADCAST
AND OTHER PROGRAM
DISTRIBUTIONAL SERVICES
5. The authority citation for part 74
continues to read as follows:
■
Authority: 47 U.S.C. 154, 302a, 303, 307,
309, 310, 325, 336 and 554.
6. Amend § 74.782 by:
a. In paragraph (b)(3) remove the date
‘‘July 17, 2023’’ and add, in its place,
‘‘July 17, 2027’’;
■ b. Revising paragraphs (g)(5) and (6);
and
■ c. Adding paragraph (j).
The revisions and addition read as
follows:
■
■
§ 74.782 Low power television and TV
translator simulcasting during the ATSC 3.0
(Next Gen TV) transition.
*
*
*
*
*
(g) * * *
(5) Expedited processing. An
application filed in accordance with the
streamlined process in paragraph (f)(3)
of this section will receive expedited
processing provided, for stations
requesting to air an ATSC 1.0 primary
signal on the facilities of a host station,
that station will provide ATSC 1.0
service to at least 95 percent of the
predicted population within the noise
limited service contour of its original
ATSC 1.0 facility.
(6) Required information. (i) An
application in paragraph (f)(2) of this
section must include the following
information:
(A) The station or stations serving as
the host or hosts, identified by call sign
and facility identification number, if
applicable;
(B) The technical facilities of each
host station, if applicable;
(C) The DMA of the originating
broadcaster’s facility and the DMA of
each host station, if applicable;
(D) A web link to the exhibit
described in paragraph (i) of this
section, if applicable; and
(E) Any other information deemed
necessary by the Commission to process
the application.
(ii) If an application in paragraph
(f)(2) of this section includes a request
to air an ATSC 1.0 signal on the
facilities of a host station or stations, the
broadcaster must, in addition to the
information in paragraph (f)(6)(i) of this
section, also indicate on the application:
(A) The predicted population within
the noise limited service contour served
by the station’s original ATSC 1.0
signal;
(B) The predicted population within
the noise limited service contour served
by the station’s original ATSC 1.0 signal
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Fmt 4700
Sfmt 4700
that will lose the station’s ATSC 1.0
service as a result of the hosting
arrangement or arrangements, including
identifying areas of service loss by
providing a contour overlap map; and
(C) Whether the ATSC 1.0 primary
stream simulcast signal aired on the
host station will serve at least 95
percent of the population in paragraph
(f)(6)(ii)(A) of this section.
*
*
*
*
*
(j) Multicast streams. A Next Gen TV
station is not required to license, under
paragraph (f) of this section, a ‘‘guest’’
multicast programming stream that it
originates and which is aired on a host
station. If it chooses to do so, it and each
of its licensed guest multicast streams
must comply with the requirements of
this section (including those otherwise
applicable only to primary streams),
except for paragraph (f)(5) of this section
and as otherwise provided in this
paragraph. For purposes of this section,
a ‘‘multicast’’ stream refers to a video
programming stream other than the
primary video programming stream.
(1) 1.0 Multicast streams. A Next
Gen TV station may license its guest
ATSC 1.0 multicast stream(s) aired on
one or more ATSC 1.0 hosts pursuant to
paragraph (f) of this section. Nonsimulcast streams are not required to
comply with paragraph (b) of this
section.
(i) Host capacity limit. A Next Gen TV
station that has converted its own
facility to 3.0 must not license more
capacity on one or more partner host
stations, in the aggregate, than the
station could use if it were still
operating on its own facility in 1.0. It
must demonstrate compliance with this
limit in its license application exhibit.
(2) 3.0 Multicast streams. A Next
Gen TV station may license its guest
ATSC 3.0 multicast stream(s) aired on
one or more ATSC 3.0 hosts pursuant to
paragraph (f) of this section.
(3) Children’s television. A Next Gen
TV station may rely on a multicast
stream it is airing via a host partner to
comply with the Commission’s
children’s television programming
requirement in § 73.671 of thischapter.
Such a stream must either be carried on
the same host as the Next Gen TV
station’s primary stream, or on a host
that serves at least 95 percent of the
predicted population served by the Next
Gen TV station’s pre-transition 1.0
signal.
(4) Application exhibit required. A
Next Gen TV station seeking to license
hosted multicast streams must prepare
and host on its public website (or its
Online Public Inspection File if the
station does not have a dedicated
E:\FR\FM\17JYR1.SGM
17JYR1
Federal Register / Vol. 88, No. 135 / Monday, July 17, 2023 / Rules and Regulations
website) the exhibit referenced in
paragraph (f)(6)(i)(D) of this section. The
exhibit must contain the following:
(i) For each hosted stream: channel
number (RF and virtual); network
affiliation (or type of programming if
unaffiliated); resolution (e.g., 1080i,
720p, 480p, or 480i); whether the stream
will be simulcast; and if so, the identity
of the paired stream in the other service;
and
(ii) For a station that has converted its
own facility to 3.0, the exhibit must also
demonstrate compliance with the host
capacity limit. It may do so by either
showing that it is seeking hosting only
for streams it was broadcasting on its
own 1.0 facility prior to its transition to
3.0, or identifying another 1.0 station
that is carrying or has carried the same
or a similar programming lineup at the
same resolutions on the same type of
facility (individual or shared);
(iii) For a station that has converted
its own facility to 3.0, the exhibit must
also demonstrate compliance with the
coverage requirement for guest multicast
streams, including by providing a
contour map showing the guest
multicast stream will continue to serve
the station’s community of license; and
(iv) Changes to the exhibit. Changes to
the affiliation or content of a stream that
would not result in the use of additional
capacity, the elimination of a stream, or
non-substantive corrections may be
made at the discretion of the applicant
but must be reflected in a timely update
to the existing public exhibit and an
emailed notice to the Chief of the Media
Bureau’s Video Division or their
designee. No other changes, including to
the location of the exhibit itself, may be
made without the filing and approval of
a new application.
[FR Doc. 2023–14408 Filed 7–14–23; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
ddrumheller on DSK120RN23PROD with RULES1
[Docket No. 180720681–8999–02; RTID
0648–XD155]
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; 2023
Recreational Closure for Golden
Tilefish in the South Atlantic
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
VerDate Sep<11>2014
16:21 Jul 14, 2023
Jkt 259001
NMFS implements an
accountability measure (AM) for the
recreational harvest of golden tilefish in
the exclusive economic zone (EEZ) of
the South Atlantic. NMFS estimates that
recreational landings of golden tilefish
have reached the recreational annual
catch limit (ACL) for the 2023 fishing
year. Accordingly, NMFS closes the
recreational sector for the harvest of
golden tilefish in the South Atlantic
EEZ on July 17, 2023. This closure is
necessary to protect the golden tilefish
resource.
DATES: This temporary rule is effective
from 12:01 a.m. eastern time on July 17,
2023, through December 31, 2023.
FOR FURTHER INFORMATION CONTACT:
Mary Vara, NMFS Southeast Regional
Office, telephone: 727–824–5305, email:
mary.vara@noaa.gov.
SUPPLEMENTARY INFORMATION: The
snapper-grouper fishery of the South
Atlantic includes golden tilefish and is
managed under the Fishery
Management Plan for the SnapperGrouper Fishery of the South Atlantic
Region (FMP). The FMP was prepared
by the South Atlantic Fishery
Management Council and is
implemented by NMFS under the
authority of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act) by
regulations at 50 CFR part 622.
Regulations at 50 CFR 622.193(a)(2)
specify the recreational ACL for golden
tilefish of 2,316 fish, as well as the
recreational AMs if landings reach or
exceed the ACL. The in-season
recreational AM states that if
recreational landings reach or are
projected to reach the recreational ACL,
then the recreational sector will be
closed for the remainder of the fishing
year (50 CFR 622.193(a)(2)(i)).
Recreational landings data from the
NMFS Southeast Fisheries Science
Center indicate that the golden tilefish
recreational ACL for 2023 has been
reached. Therefore, this temporary rule
implements the AM to close the golden
tilefish recreational sector for the
remainder of the 2023 fishing year. As
a result, the recreational sector for
golden tilefish in the South Atlantic
EEZ will be closed effective from 12:01
a.m. eastern time on July 24, 2023,
through December 31, 2023. During the
recreational closure, the bag and
possession limits for golden tilefish in
or from the South Atlantic EEZ are zero.
The recreational sector for golden
tilefish will open again on January 1,
2024, the beginning of the 2024 fishing
year and the recreational fishing season.
NMFS has also closed the longline
component of the commercial sector for
SUMMARY:
PO 00000
Frm 00041
Fmt 4700
Sfmt 4700
45369
golden tilefish for the remainder of the
2023 fishing year (88 FR 20079, April 5,
2023). The hook-and-line component of
the commercial sector is currently still
open for the 2023 fishing year, and
NMFS continues to monitor commercial
hook-and-line landings.
Classification
NMFS issues this action pursuant to
section 305(d) of the Magnuson-Stevens
Act. This action is required by 50 CFR
622.193(a)(2)(i), which was issued
pursuant to section 304(b) of the
Magnuson-Stevens Act, and is exempt
from review under Executive Order
12866.
Pursuant to 5 U.S.C. 553(b)(B), there
is good cause to waive prior notice and
an opportunity for public comment on
this action, as notice and comment are
unnecessary and contrary to the public
interest. Such procedures are
unnecessary because the rule that
established the recreational ACL and
AM for golden tilefish has already been
subject to notice and comment, and all
that remains is to notify the public of
the closure. Such procedures are
contrary to the public interest because
of the need to immediately implement
this action to protect the golden tilefish
stock. The recreational ACL has been
reached and prior notice and
opportunity for public comment would
require time, potentially resulting in a
harvest well in excess of the established
ACL.
For the reasons just stated, there is
also good cause to waive the 30-day
delay in the effectiveness of this action
under 5 U.S.C. 553(d)(3).
Authority: 16 U.S.C. 1801 et seq.
Dated: July 12, 2023.
Kelly Denit,
Director, Office of Sustainable Fisheries,
National Marine Fisheries Service.
[FR Doc. 2023–15093 Filed 7–12–23; 4:15 pm]
BILLING CODE 3510–22–M
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 635
[Docket No. 220919–0193]
RTID 0648–XD158
Atlantic Highly Migratory Species;
Atlantic Bluefin Tuna Fisheries;
Harpoon Category Retention Limit
Adjustment
National Marine Fisheries
Service (NMFS), National Oceanic and
AGENCY:
E:\FR\FM\17JYR1.SGM
17JYR1
]]>Agencies
[Federal Register Volume 88, Number 135 (Monday, July 17, 2023)]
[Rules and Regulations]
[Pages 45347-45369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14408]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 74
[GN Docket No. 16-142; FCC 23-53; FR ID 152588]
Authorizing Permissive Use of the ``Next Generation'' Broadcast
Television Standard
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) makes changes to its Next Gen TV rules designed to
preserve over-the-air (OTA) television viewers' access to the widest
possible range of programming while also supporting television
broadcasters' transition to the next generation of broadcast television
technology. In the first part of this Order, the Commission establishes
a licensing regime for Next Gen TV stations' multicast streams that are
aired on host stations during the transition period. In the second part
of this Order, the Commission retains the substantially similar rule
and the requirement to comply with the ATSC A/322 standard.
DATES: Effective August 16, 2023, except for Sec. Sec. 73.3801(f) and
(i), 73.6029(f) and (i), and 74.782(g) and (j) which contain
information collection requirements that are not effective until
approved by the Office of Management and Budget (OMB). The Commission
will publish a document in the Federal Register announcing the
effective date for these sections. In addition, effective August 16,
2023, the stay on 47 CFR 73.682(f)(2)(iii) is lifted.
FOR FURTHER INFORMATION CONTACT: For additional information, contact
Evan Baranoff, [email protected], of the Media Bureau, Policy
Division, (202) 418-7142. Direct press inquiries to Janice Wise at
(202) 418-8165. For additional information concerning the Paperwork
Reduction Act information collection requirements contained in this
document, send an email to [email protected] or contact Cathy Williams at
(202) 418-2918.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Report and Order, in GN Docket No. 16-142; FCC 23-53, adopted on June
20, 2023 and released on June 23, 2023. The full text of this document
is available electronically via the FCC's website at https://docs.fcc.gov/public/attachments/FCC-23-53A1.pdf or via the FCC's
Electronic Comment Filing
[[Page 45348]]
System (ECFS) website at https://www.fcc.gov/ecfs (Documents will be
available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat). Alternative formats are available for people with
disabilities (Braille, large print, electronic files, audio format), by
sending an email to [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 Third Report and Order in the Next Generation Broadcast
Television (ATSC 3.0 or Next Gen TV) docket, we make changes to our
Next Gen TV rules designed to preserve over-the-air (OTA) television
viewers' access to the widest possible range of programming while also
supporting television broadcasters' transition to the next generation
of broadcast television technology. These changes are based on the
records collected in response to both the Next Gen TV Multicast
Licensing FNPRM, 86 FR 70793 (Dec. 13, 2021), and the Sunsets FNPRM, 87
FR 40464 (Jul 7, 2022). We generally adopt our proposal in the Next Gen
TV Multicast Licensing FNPRM to allow a Next Gen TV station \1\ to seek
modification of its license \2\ to include certain of its non-primary
video programming streams (multicast streams) \3\ that are aired on
``host'' stations \4\ during a transitional period. In adopting this
proposal, we follow the same licensing framework, and to a large extent
the same regulatory regime, established for the simulcast of primary
video programming streams on ``host'' station facilities.\5\ We also
extend the sunsets of, and thus retain in effect until at least July
17, 2027, the substantially similar rule for simulcast streams and the
requirement to comply with the ATSC A/322 standard on primary 3.0
streams.\6\
---------------------------------------------------------------------------
\1\ By ``Next Gen TV'' broadcaster or station, we mean a
television broadcaster or station that has obtained Commission
approval and commenced broadcasting its signal using the ATSC 3.0
standard in its local market. A station can deploy ATSC 3.0 service
either by converting its own facility to ATSC 3.0 or by airing its
ATSC 3.0 signal(s) on a station in its local market that has
converted its facility to ATSC 3.0 (which we refer to as an ATSC 3.0
``host'' station). For purposes of this Report and Order, a
station's ``own'' channel or facility refers to the channel and
facility on which it operated prior to its transition to ATSC 3.0
(even if it has already converted to operate in 3.0). We use this
term to distinguish between operations on this facility and a
station's operations as a guest on a host facility.
\2\ While in this document we may refer to the licensing of
multicast streams, we clarify that we are establishing a process to
license a guest Next Gen TV station capacity on a host's channel for
the purpose of airing one or more guest multicast streams.
Consistent with the Next Gen TV Multicast Licensing FNPRM, each
portion of a host channel that is being licensed by a guest station
to air one or more programming streams will be separately authorized
channels under the originating (guest) broadcaster's single, unified
license.
\3\ For purposes of this Report and Order, ``multicast''
stream(s) refers to a TV broadcast station's non-primary video
programming stream(s); that is, stream(s) other than the station's
primary video programming stream.
\4\ A ``host'' station is one whose facilities are being used to
transmit programming originated by another station (i.e., ``guest'')
as part of a local simulcasting arrangement.
\5\ We note that our rules do not prohibit the use of private
contractual arrangements for partner stations to air their multicast
streams. For regulatory compliance purposes, such streams would be
considered multicast streams of the host partner station, not the
originator (guest) station.
\6\ The Commission will initiate a review approximately one year
before these rules are set to expire to seek comment on whether they
should be extended based on marketplace conditions at that time.
---------------------------------------------------------------------------
2. Given that Next Gen TV stations must, without any additional
allocation of spectrum, continue serving ATSC 1.0 viewers while
voluntarily transitioning to ATSC 3.0, we seek to take actions that
will minimize viewer disruption as much as possible during this limited
transition period. Specifically, this Report and Order seeks to
facilitate and encourage partnerships that will minimize potential
disruptions by permitting stations in a market to work together to
preserve viewers' access to ATSC 1.0-formatted programming during the
transition. We intend simultaneously to facilitate broadcasters'
voluntary transition to ATSC 3.0, which can provide consumers with the
benefit of new and innovative services, while protecting the vast
majority of over-the-air TV viewers who continue to rely on 1.0
equipment.
3. In the accompanying Fourth Further Notice of Proposed Rulemaking
(RAND FNPRM), published elsewhere in this issue of the Federal
Register, we seek to further our understanding of the current
marketplace for ATSC 3.0 Standard Essential Patents (SEPs) and the
ability of third parties to develop products that rely upon them. We
also seek comment on the impact on consumers if the Commission were to
adopt, or not adopt, rules to require essential patent holders in 3.0
technology to commit to licensing them on reasonable and non-
discriminatory (RAND) terms.
II. Background
4. In 2017, the Commission authorized television broadcasters to
use the Next Gen TV transmission standard, also called ``ATSC 3.0'' or
``3.0,'' on a voluntary, market-driven basis.\7\ The Commission
required that broadcasters voluntarily deploying ATSC 3.0 service must,
with very limited exceptions,\8\ continue to air at least their primary
streams using the current-generation TV transmission standard, also
called ``ATSC 1.0'' or ``1.0,'' to their viewers through ``local
simulcasting.'' Under the Commission's rules, Next Gen TV broadcasters
are encouraged, but not required, to simulcast their 3.0 multicast
streams in a 1.0 format.
---------------------------------------------------------------------------
\7\ Next Gen TV is the newest broadcast TV transmission
standard, developed by the Advanced Television Systems Committee
(ATSC), which promises to enable broadcasters to deliver an array of
new video and non-video services and enhanced content features to
consumers. ATSC 3.0 merges the capabilities of over-the-air (OTA)
broadcasting with the broadband viewing and information delivery
methods of the internet, using the same 6 MHz channels presently
allocated for TV service. As 3.0 proponents have previously
explained to the Commission, the greater spectral capacity of the
new standard and its internet-Protocol delivery component will allow
broadcasters to provide consumers with a higher quality television
viewing experience, such as ultra-high-definition (UHD) picture
resolutions and immersive audio. It also has the potential to enable
broadcasters to reach viewers on both home and mobile screens. In
addition, ATSC 3.0 will allow broadcasters to offer enhanced public
safety capabilities, such as geo-targeting of emergency alerts to
tailor information to particular communities and emergency alerting
capable of waking up sleeping devices to warn consumers of imminent
emergencies, as well as greater accessibility options, localized
content, and interactive educational children's content.
\8\ LPTV and TV translator stations may deploy ATSC 3.0 service
without providing an ATSC 1.0 simulcast signal. In addition, full
power and Class A stations may request a waiver of the simulcast
requirements.
---------------------------------------------------------------------------
5. The Commission found that the local simulcasting requirement is
crucial to deploying Next Gen TV service in a manner that minimizes
viewer disruption. The Next Gen TV standard is not backward-compatible
with existing TV sets or receivers, which have only ATSC 1.0 and analog
tuners. Accordingly, viewers will be unable to watch ATSC 3.0
transmissions on their existing televisions without additional
equipment. Thus, it is critical that Next Gen TV broadcasters continue
to provide service using the current ATSC 1.0 standard while the
consumer equipment marketplace adopts televisions and converter devices
compatible with the new 3.0 transmission standard. This is necessary in
order to avoid forcing viewers to acquire expensive new equipment
immediately or depriving them of their local television service during
the transition. Because a TV station cannot, as a technical matter,
simultaneously broadcast in both 1.0 and 3.0 format from the same
facility on the same physical channel, local simulcasting must be
effectuated through voluntary
[[Page 45349]]
partnerships that broadcasters seeking to provide Next Gen TV service
enter into with other broadcasters in their local markets. A Next Gen
TV station must partner with another television station (i.e., a
temporary ``host'' station) in its local market to either: (1) air an
ATSC 3.0 channel at the temporary host's facility, while using its
original facility to continue to provide an ATSC 1.0 simulcast channel,
or (2) air an ATSC 1.0 simulcast channel at the temporary host's
facility, while converting its original facility to the ATSC 3.0
standard in order to provide a 3.0 channel.\9\ A Next Gen TV station's
ATSC 1.0 ``simulcast'' must be ``substantially similar'' to that of the
primary video programming stream on the ATSC 3.0 channel. Substantially
similar ``means that the programming must be the same except for
advertisements, promotions for upcoming programs, and programming
features that are based on the enhanced capabilities of ATSC 3.0.''
---------------------------------------------------------------------------
\9\ In either case, a Next Gen TV broadcaster must simulcast the
primary video programming stream of its ATSC 3.0 channel in an ATSC
1.0 format, so that viewers will continue to receive ATSC 1.0
service. By the time the transition is complete, any temporary
authority granted for local simulcasting will expire, and a station
will once again be required to air all of its licensed programming
on its own single channel. In June 2022, the Commission initiated a
proceeding to consider the state of the transition and the Next Gen
TV marketplace.
---------------------------------------------------------------------------
6. The process for considering applications to deploy ATSC 3.0
service includes coverage requirements for a Next Gen TV station's ATSC
1.0 simulcast signal.\10\ The Commission sought to minimize disruption
to viewers resulting from the voluntary deployment of ATSC 3.0 while
recognizing that if a station moves its ATSC 1.0 signal to a partner
simulcast host station with a different transmitter location, some OTA
viewers may no longer be able to receive the station's 1.0 signal.
Among other obligations, the Commission requires the Next Gen TV
station to select a partner 1.0 simulcast host station that is assigned
to its same designated market area (DMA) and from which it will
continue to provide ATSC 1.0 simulcast service to its entire community
of license.\11\
---------------------------------------------------------------------------
\10\ A Next Gen TV broadcaster must file an application and
obtain Commission approval before a 1.0 simulcast channel or a 3.0
channel aired on a partner host station can go on the air, as well
as before an existing 1.0 station can convert to 3.0 operation or
back to 1.0 operation.
\11\ Because Class A TV stations do not have a community of
license, the Commission established a coverage requirement based on
contour overlap and mileage. Some stations may not be formally
assigned by Nielsen to DMAs. As stated in the Next Gen TV First
Report and Order, ``we will consider stations that are not assigned
to a DMA by Nielsen to be assigned to the DMA in which they are
located.''
---------------------------------------------------------------------------
A. Multicast Licensing
7. According to the National Association of Broadcasters (NAB), as
ATSC 3.0 deployment has progressed, broadcasters interested in
transitioning to ATSC 3.0 while maintaining their current programming
streams have faced challenges finding partner stations willing to host
broadcasters' multicast streams through private contractual agreements.
Moreover, NAB states that Next Gen TV broadcasters want to ``continue
to serve audiences with multicast streams,'' even though they are not
required to do so. NAB contends that stations are hesitant to serve as
hosts pursuant to private arrangements due to concerns about regulatory
liability and whether such private multicast agreements are expressly
permitted under the Commission's ATSC 3.0 rules. Moreover, NAB observes
that ``a purely contractual approach [to ATSC 3.0 deployment-related
sharing arrangements] would exclude noncommercial stations from
participating in sharing arrangements to host commercial multicast
streams'' under section 399B of the of the Communications Act. In
addition, NAB asserts that if broadcasters execute hosting agreements
for their multicast streams that are not reflected on the license of
the originating station, ``the Commission might not retain enforcement
authority'' over the originating station with respect to that guest
stream.\12\
---------------------------------------------------------------------------
\12\ The NAB asserts that these issues ``could create complex
contractual indemnification concerns that could complicate
deployment,'' particularly for NCE stations, ``some of which are
restricted or prohibited entirely from agreeing to
indemnification.''
---------------------------------------------------------------------------
8. Because our existing rules do not address a guest station's
licensing of a host station's spectrum to air multicast streams, even
with regard to the host that is airing the guest station's primary
stream, the Media Bureau implemented an interim process by which a Next
Gen TV broadcaster that has converted or is seeking to convert its
facility to 3.0 can seek special temporary authority (STA) to air 1.0
multicast streams on a host station. Just as under the current rules
for primary guest streams, these STAs permit a guest multicast stream
to be treated as if it originated from the Next Gen TV broadcaster's
facility, as opposed to the host station's facility, for purposes of
the Commission's rules and the Communications Act. The STAs granted to
date are valid for six months but may be renewed. This case-by-case
process is resource-intensive for both the Commission and broadcasters,
in addition to making it difficult for potential viewers to track where
streams are being hosted.
9. In November 2020, NAB filed a Petition for Declaratory Ruling
and Petition for Rulemaking (Petition) asking the Commission to allow
Next Gen TV stations to seek modification of their licenses to include
certain of their multicast streams that are aired in a different
service on host stations during the period of transition to 3.0. In
response to the NAB Petition, we adopted the Next Gen TV Multicast
Licensing FNPRM,\13\ which:
---------------------------------------------------------------------------
\13\ Comments were due February 11, 2022 and reply comments were
due March 14, 2022.
---------------------------------------------------------------------------
Proposed to license a Next Gen TV broadcaster's simulcast
multicast stream(s) either together with its primary stream on the
primary simulcast host or on different simulcast host(s). A ``simulcast
multicast stream'' in the context of this proceeding is a multicast
stream that is aired by a Next Gen TV station, in substantially similar
fashion,\14\ in both 1.0 and 3.0 formats throughout the mandatory local
simulcasting period.\15\
---------------------------------------------------------------------------
\14\ As with primary streams, ``substantially similar''
multicast streams must have the same programming, except for
programming features that are based on the enhanced capabilities of
ATSC 3.0, including targeted advertisements and promotions for
upcoming programs. Such enhanced content or features that cannot
reasonably be provided in ATSC 1.0 format include: ``hyper-
localized'' content (e.g., geo-targeted weather, targeted emergency
alerts, and hyper-local news), programming features or improvements
created for the 3.0 service (e.g., emergency alert ``wake up''
ability and interactive programming features), enhanced formats made
possible by 3.0 technology (e.g., 4K or HDR), and any
personalization of programming performed by the viewer and at the
viewer's discretion.
\15\ That is, we mean either (1) a 1.0 multicast guest stream
aired on a host that is a simulcast of a 3.0 multicast stream aired
by the Next Gen TV station, or (2) a 3.0 multicast guest stream
aired on a host that is a simulcast of a 1.0 multicast stream aired
by the Next Gen TV station. For example, in this situation, Station
A converts to 3.0 and arranges for Station B (remaining in 1.0) to
host Station A's primary stream and one multicast stream in 1.0;
Petitioner wants the multicast stream, like the primary stream, to
be licensed to Station A, the originator of the streams. In
addition, if Station A arranges for Station C (not the primary host)
to host a second multicast stream in 1.0, that multicast stream
would also be licensed to Station A. In these examples, Station A
would itself be broadcasting both multicast streams in 3.0.
Likewise, if a station remained in 1.0, it would be allowed to
license its 3.0 multicast streams aired either by the primary host
or a secondary host. In these situations, the multicast channels are
being simulcast.
---------------------------------------------------------------------------
Proposed to license a Next Gen TV broadcaster's ``non-
simulcast'' 1.0 multicast stream(s) either together with its primary
stream on its primary 1.0 host or on different 1.0 simulcast host(s). A
``non-simulcast 1.0 multicast stream'' in the context of this
proceeding is a multicast stream that is
[[Page 45350]]
aired only in 1.0 format and not in 3.0 format.\16\
---------------------------------------------------------------------------
\16\ For example, using Stations A, B, and C from the prior
example, Station A (the 3.0 host) only has enough capacity to air
its primary channel, Station B's primary channel, and Station C's
primary channel in 3.0, but wants to continue to provide its
multicast channels in 1.0 during the transition. In this situation,
Stations B and C would each be hosting a multicast stream licensed
to Station A, but neither multicast stream would be simulcast. Thus,
by ``non-simulcast 1.0 multicast stream,'' we refer to a multicast
stream that was originated by a Next Gen TV station and aired in 1.0
format either on its own channel or a 1.0 host's channel, but that
has no ``substantially similar'' stream being aired in 3.0 format by
the originating station, whether on its own channel or on a 3.0
host's channel.
---------------------------------------------------------------------------
Declined to consider NAB's proposal to license a Next Gen
TV broadcaster's ``non-simulcast'' 3.0 multicast stream(s) either
together with its primary stream on its primary 3.0 host or on
different 3.0 host(s). A ``non-simulcast 3.0 multicast stream'' in the
context of this proceeding is a multicast stream that is aired only in
3.0 format and not in 1.0 format.
Proposed to allow, under certain circumstances, a Next Gen
TV station to simulcast its primary stream programming both on its
primary stream host and on a multicast stream carried by a different
partner station in order to minimize the impact of service loss that
would result if it were only able to air its primary stream on a single
host.
The Next Gen TV Multicast Licensing FNPRM also considered whether
to limit the amount of host capacity that may be used by a given Next
Gen TV station, and, in particular, sought comment on NAB's proposal
that: ``In arranging for the hosting of its programming, no individual
broadcaster shall partner with other stations to host, in the
aggregate, more programming than such station could broadcast on its
own facilities based on the then-current state of the art for
television broadcasting as evidenced by other television stations then
operating with the same standard.'' In response to the Next Gen TV
Multicast Licensing FNPRM, we received comments, reply comments, and ex
parte communications from 15 different parties, including 10 broadcast
station groups and associations (including NAB) and two multichannel
video programming distributor (MVPD) associations.
B. Sunsets
10. ``Substantially Similar'' Rule. In the First Next Gen TV Report
and Order, 83 FR 4998 (Feb. 2, 2018), the Commission adopted a
requirement that the programming aired on a Next Gen TV station's ATSC
1.0 simulcast channel be ``substantially similar'' to that of the
primary video programming stream on the ATSC 3.0 channel.\17\ This
means that the programming must be the same, except for programming
features that are based on the enhanced capabilities of ATSC 3.0 and
promotions for upcoming programs. In adopting this approach, the
Commission found it ``will help ensure that viewers do not lose access
to the broadcast programming they receive today, while still providing
flexibility for broadcasters to innovate and experiment with new,
innovative programming features using Next Gen TV technology.'' The
Commission decided, however, that the substantially similar requirement
would expire on July 17, 2023, unless the Commission takes action to
extend it.\18\ In this regard, the Commission concluded that, while
``this [substantially similar] requirement is necessary in the early
stages of ATSC 3.0 deployment, it could unnecessarily impede Next Gen
TV programming innovations as the deployment of ATSC 3.0 progresses.''
The Commission further stated that it ``intend[ed] to monitor the ATSC
3.0 marketplace,'' and would ``extend the substantially similar
requirement if necessary.'' The substantially similar rule took effect
on July 17, 2018, and is set to expire on July 17, 2023, unless
extended by the Commission.\19\ The Commission affirmed this decision
in 2020, but stated that, approximately one year before the requirement
is set to expire, it would seek comment on whether the rule should be
extended based on marketplace conditions at that time.
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\17\ We refer to this as the substantially similar rule. The
substantially similar rule is independent of the requirement for
Next Gen TV broadcasters to simulcast in 1.0 format, a requirement
that does not have a sunset date.
\18\ We emphasize that the underlying requirement that a Next
Gen TV station must simulcast in 1.0 format does not have a sunset
date. In addition, none of the other aspects of the local
simulcasting rules are set to expire, including those governing
simulcast arrangements and agreements; DMA and community of license
coverage; and MVPD notices and consumer education.
\19\ The local simulcasting rules, sections 73.3801, 73.6029,
and 74.782, took effect on July 17, 2018.
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11. Requirement to comply with the ATSC A/322 standard. In
authorizing use of the Next Gen TV broadcast transmission standard, the
Commission in the First Next Gen TV Report and Order required
compliance with only two parts of the ATSC 3.0 suite of standards: (1)
ATSC A/321:2016 ``System Discovery & Signaling'' (A/321),\20\ which is
the standard used to communicate the RF signal type that the ATSC 3.0
signal will use; and (2) A/322:2016 ``Physical Layer Protocol'' (A/
322),\21\ which is the standard that defines the waveforms that ATSC
3.0 signals may take.\22\ In requiring compliance with A/322, the
Commission observed that ``device manufacturers and MVPDs may not be
able to reliably predict what signal modulation a broadcaster is using
unless broadcasters are required to follow A/322,'' at least with
respect to their required primary programming stream. The Commission
explained that ``[t]his uncertainty could cause manufacturers to
inadvertently build equipment that cannot receive Next Gen TV
broadcasts or could render MVPDs unable to receive and retransmit the
signals of Next Gen TV stations. These outcomes would harm consumers.''
The Commission, however, decided that it was not appropriate at the
time ``to require broadcasters to adhere to A/322 indefinitely,''
explaining that ``the ATSC 3.0 standard could evolve, and stagnant
Commission rules could prevent broadcasters from taking advantage of
that evolution.'' The Commission thus determined that the requirement
to comply with the A/322 standard would expire on March 6, 2023, absent
Commission action to extend it. In establishing a sunset for A/322
compliance, the Commission sought to ``balance [its] goals of
protecting consumers while promoting innovation.'' \23\ The Commission
affirmed this decision in 2020, but stated that, approximately one year
before the requirement is set to expire, it would seek comment on
whether the rule should be extended based on marketplace conditions at
that time.
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\20\ See ATSC A/321:2016 ``System Discovery & Signaling''
(2016), https://www.atsc.org/wp-content/uploads/2016/03/A321-2016-System-Discovery-and-Signaling.pdf.
\21\ See ATSC A/322:2016 ``Physical Layer Protocol'' (2016),
https://atsc.org/wp-content/uploads/2016/10/A322-2016-Physical-Layer-Protocol.pdf.
\22\ These two standards were incorporated by reference into the
Commission's rules. The Commission applied the A/322 standard only
to a Next Gen TV station's primary, free, OTA video programming
stream.
\23\ On March 6, 2023, the Commission temporarily extended this
requirement pending further Commission action on the sunset.
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12. In June 2022, we adopted a Third Further Notice of Proposed
Rulemaking (Sunsets FNPRM) in the Next Gen TV docket considering and
seeking comment on the state of the Next Gen TV transition and on the
scheduled sunsets of the substantially similar rule and the requirement
to comply with the ATSC A/322 standard. In response to the Sunsets
FNPRM, the Commission received comments and reply comments from 32
different parties.
[[Page 45351]]
III. Discussion
13. In this Order, we largely adopt the rules proposed in the Next
Gen TV Multicast Licensing FNPRM, establishing a licensing regime for
Next Gen TV stations' multicast streams that are aired on host stations
during the transition period. The rules we adopt facilitate and
encourage Next Gen TV stations to preserve consumer access to multicast
programming in 1.0 format during the voluntary ATSC 3.0 transition.
They will provide the industry with regulatory certainty about the
legal treatment of licensed multicast streams; clarify that the
originating station (and not the host station) is responsible for
regulatory compliance regarding a multicast stream being aired on a
host station; give the Commission clear enforcement authority over the
originating station in the event of a rule violation on the hosted
multicast programming stream; and facilitate NCE stations' 3.0
deployment by allowing them to serve as hosts to commercial stations'
multicast streams. We recognize that allowing Next Gen TV stations to
seek modification of their licenses to include capacity on multiple
host stations represents a notable departure from our present licensing
regime. We also recognize that every such departure in aid of the
voluntary NextGen TV transition, however minor it may appear, results
in potential consumer harm and expense. For example, each time a stream
is hosted on a different facility with a different noise-limited
service contour (NLSC), some current viewers may lose a signal on which
they may have come to rely, for the entire uncertain duration of the
transition. By the same token, some viewers who were not previously in
the coverage area may receive the signal for the first time. These
viewers may come to rely on a signal that may be permanently lost at
the end of the transition. Even in the case where a hosted stream
covers the entire NLSC of the originating station, each time a change
is made every single viewer must rescan each of their televisions and
other receive devices to continue to receive that signal. In
considering proposals like those in this proceeding, we therefore must
weigh these inescapable harms, along with others unique to specific
proposals, against the benefits that permitting additional flexibility
in our licensing procedures may provide. In the case of the rules and
flexibility adopted in this Order, we find that departing from our
licensing regime is appropriate because it is limited to the temporary
broadcast transition to 3.0 and to specific situations for which there
is a clear need. Where we have declined to adopt the flexibility sought
by broadcasters, it is because the record does not demonstrate that the
needs and benefits outweigh the harms.
14. First, we conclude that Next Gen TV stations may seek
modification of their licenses to include one or more simulcast
multicast streams on a host station or stations, whether that guest
stream is a 1.0 or 3.0 simulcast (``simulcast'' multicast streams).
Second, we conclude that Next Gen TV stations that are broadcasting in
3.0 on their own channels may seek modification of their licenses to
include one or more multicast streams aired only in 1.0 format on a
host station or stations even if they are not simulcasting that stream
in 3.0 (``non-simulcast'' 1.0 multicast streams). To permit the
licensing of multicast streams on a host, each of the originating
station's guest multicast streams will be licensed as a temporary
channel in the same manner as its primary stream is licensed on the
primary host. That is, each of the originating station's guest
multicast streams aired on a host will be considered to be an
additional, separately authorized channel under the originating
station's single, unified license. Third, we decline to address
comments asking us to allow the licensing of 3.0 non-simulcast
multicast streams (aired as guest streams on a 3.0 host station, as
opposed to aired on a 3.0 station's own facility) because we
specifically did not seek comment on this issue. Fourth, we limit the
number of 1.0 guest streams that may be included in the license of a
single Next Gen TV station to those which it would have the capacity to
transmit over its own facility in 1.0. Fifth we allow, in certain
circumstances, a Next Gen TV station to simulcast its primary stream
programming both on its primary stream host and on a multicast stream
carried by a different partner station in order to minimize the impact
of 1.0 primary service loss that would result if originating station
were only able to air its primary stream on a single host. Sixth, we
extend the ``ownership waiver'' that applies in the primary stream
context to ensure that hosted multicast streams do not implicate our
broadcaster attribution rules, while reiterating that any changes in
our rules governing multicast streams, including any changes adopted in
the ongoing ownership proceeding, will apply equally to hosted
multicast streams. Seventh, we decline to license same service (or
``lateral'') hosting arrangements. Eighth, we conclude that we will
generally apply the same ATSC 3.0 transition rules to licensed
multicast streams as we do to primary simulcast streams. Ninth, we
conclude that our multicast licensing rules will apply until the
Commission eliminates the mandatory local simulcasting requirement.
Finally, we extend the sunset dates for the substantially similar rule
for simulcast streams and the requirement to comply with the ATSC A/322
standard on primary 3.0 streams.
A. Simulcast Multicast Streams
15. We adopt our unopposed tentative conclusion to allow a Next Gen
TV broadcaster to seek modification of its license to include its
simulcast multicast stream(s), whether they are hosted together with
its primary stream on the primary simulcast host or on different
simulcast host(s). That is, a Next Gen TV station may seek modification
of its license to include one or more of its multicast streams, hosted
by one or more partner stations, whenever the Next Gen TV station is
airing that multicast stream in ``substantially similar'' fashion in
both 1.0 and 3.0 formats and otherwise complying with the capacity,
coverage, and other requirements discussed below. Broadcasters support
this proposal,\24\ and no commenter raised any concerns about
permitting the licensing of simulcast multicast streams. We adopt our
tentative conclusion that any ``simulcast'' multicast streams must be
``substantially similar'' as that term is
[[Page 45352]]
defined in our rules and will apply this requirement for as long as it
applies to primary simulcasts. In order to be considered a
``simulcast,'' a 1.0 multicast stream must be paired, one to one, with
an identified 3.0 multicast stream.\25\ We find that permitting the
licensing of simulcast multicast streams best meets our dual goals of
facilitating the transition to 3.0 and protecting current 1.0 viewers
for the reasons discussed above, including by allowing NCE stations to
host commercial multicast streams without violating section 399B. We
again emphasize, however, that like local simulcasting arrangements for
primary streams, hosting arrangements for multicast streams are
temporary ones made to facilitate the station's transition to 3.0
service. Any service temporarily provided by such a multicast stream
beyond the station's NLSC is incidental and may not be considered for
securing any rights or benefits, now or in the future.\26\
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\24\ As explained in the Next Gen TV Multicast Licensing FNPRM,
the Commission did not address the issue of multicast licensing when
adopting its initial rules. Instead, by default, multicast
arrangements were left to private contractual arrangements and more
recently to the STA process. We thus reject ONE Media's
characterization of our existing rules. We clarify that the existing
rules (relating to a Next Gen TV station's primary stream aired on a
host) authorize only the use of the amount of capacity on a host's
channel that is necessary for airing the guest's primary stream. The
Commission did not previously authorize a guest station's use of
host capacity for airing anything other than the guest's primary
stream. We further clarify that we are authorizing a guest station
to use host capacity only for the specific purpose of airing
specific programming streams, each of which must be identified in
the license application. We also thus reject ONE Media's position
that ``a guest station can use its capacity on the licensed host
channel(s) for whatever programming or data services it wants.'' To
be clear, guest stations (1.0 or 3.0) may never license host
capacity for ancillary or supplemental services (also called
Broadcast Internet services), although we note they may lease excess
capacity from a host for such purposes through a private contractual
arrangement. Moreover, guest stations on a 3.0 host, of course, may
air 3.0 features even if separately provided from the programming
stream (e.g., advanced emergency alerts), as such features are not
ancillary or supplemental services but rather enhanced programming
features.
\25\ Multicast streams serving to deliver a primary stream's
signal in order to minimize 1.0 primary stream service loss are the
sole exception to this requirement.
\26\ At the conclusion of the transition, each Next Gen TV
station will resume service exclusively from its own facility,
serving its existing NLSC. Because any service beyond this area will
be temporary, such service will not be considered by the Commission
in other contexts (e.g., must carry demands, market modifications,
petitions for rulemaking to change a community of license, etc.).
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B. Non-Simulcast 1.0 Multicast Streams
16. We also adopt our tentative conclusion and will allow a Next
Gen TV broadcaster to seek modification of its license to include its
1.0 non-simulcast multicast streams, whether they are hosted together
with its primary stream on the primary simulcast host or on different
simulcast host(s).\27\ That is, a Next Gen TV station broadcasting in
3.0 on its own channel may seek modification of its license to include
one or more 1.0 multicast streams aired on a 1.0 host or hosts, even
when it is not simulcasting that multicast stream on a paired stream in
a 3.0 format, so long as it is otherwise complying with the capacity,
coverage, and other requirements discussed below.\28\ Broadcaster
commenters support allowing the licensing of 1.0 non-simulcast
multicast streams,\29\ while MVPD commenters do not oppose such
licensing, provided it is subject to reasonable limitations.\30\ Like
the licensing of 1.0 simulcast multicast streams, we find that
permitting the licensing of 1.0 non-simulcast multicast streams will
help preserve existing service and will achieve the goals discussed
above, including by allowing NCE stations to host commercial multicast
streams without violating section 399B.\31\ We agree with broadcasters
that allowing multicast licensing for 1.0 non-simulcast multicast
streams will benefit consumers by preserving viewer access to 1.0
multicast streams, particularly in situations where broadcasters that
have transitioned to 3.0 on their own channels lack capacity to air
their multicast streams on their 3.0 facilities. As observed in the
Next Gen TV Multicast Licensing FNPRM, at this early stage of the
transition ATSC 3.0 capacity will be limited. During the initial roll-
out of 3.0 service, we expect markets will generally start with one or
two ATSC 3.0 ``lighthouse'' stations, leaving capacity on 3.0
lighthouse stations mostly--if not entirely--for Next Gen TV stations'
primary streams. We agree with broadcasters that denying them this
flexibility would likely lead them to stop broadcasting some 1.0
multicast streams altogether. We therefore find that, by extending our
multicast licensing approach to non-simulcast 1.0 multicast streams, we
will not only encourage Next Gen TV broadcasters to preserve the
multicast streams viewers watch today, but also facilitate their
transition to 3.0 by making it easier for them to continue serving
their existing viewers even while 3.0 spectrum is limited. While we
expect that capacity constraints will be the primary reason for this
relief, given the strong public interest in facilitating broadcasters'
preservation of the best possible 1.0 service during the transition
period, and our limit on the amount of host capacity that may be
licensed, we see no reason to require broadcasters to demonstrate 3.0
capacity constraints in order to license 1.0 non-simulcast multicast
streams.\32\ Finally, we again emphasize that hosting arrangements for
multicast streams are temporary ones made to facilitate the transition
to 3.0 service.
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\27\ BitPath asked that we permit the licensing of multicast
streams on different hosts with identical programming when necessary
in order to preserve service. We do not adopt a specific rule
addressing such streams, but we note that all guest multicast
streams must serve the originating station's community of license,
and each of a station's hosted streams will be considered when
determining its compliance with the limitations on host capacity. In
order to provide flexibility to preserve existing multicast streams,
we also decline to restrict the number of 1.0 hosts with which a
station may partner, so long as it does not exceed its licensed
capacity and complies with the coverage requirements discussed below
for each of its streams.
\28\ Non-simulcast 1.0 multicast streams licensed pursuant to
our rules are not required to comply with 47 CFR 73.3801(b),
73.6029(b), and 74.782(b) (the ``Simulcasting Requirement'').
\29\ Broadcaster commenters uniformly and enthusiastically
support the licensing of non-simulcast streams and, to the extent
the Commission adopts any limits, they support NAB's proposed host
capacity limit.
\30\ MVPDs do not oppose the licensing of non-simulcast streams,
provided there are reasonable limits on the number and types of
multicast streams a Next Gen TV station may license on a host
station.
\31\ Section 399B of the Communications Act provides that ``[n]o
public broadcast station may make its facilities available to any
person for the broadcasting of any advertisement.'' 47 U.S.C.
399B(b)(2). Under a private arrangement, an NCE station would be
prohibited from hosting the simulcast programming of a commercial
station because the stream would be aired on the ``facilities'' of
the NCE licensee. However, under a licensed approach, the
``facilities'' are no longer exclusively the facilities of the NCE
station, as each station has a right to use the facilities pursuant
to its separate license and contractual rights. A commercial stream
aired on a partner NCE station will be separately licensed and
authorized to use the host's channel, therefore permitting an NCE
station to serve as a host to a commercial stream.
\32\ We thus reject NCTA's suggestion that we require a
broadcaster to demonstrate 3.0 capacity constraints as a
prerequisite to receiving authorization for non-simulcast 1.0
streams. We find that concerns regarding the need for limits on any
one broadcaster's use of spectrum will be adequately addressed by
the capacity constraints that we adopt below.
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C. Non-Simulcast 3.0 Multicast Streams
17. Our current rules do not provide for the licensing of 3.0 non-
simulcast multicast streams aired as guest streams on a 3.0 host
station.\33\ In the Next Gen TV Multicast Licensing FNPRM, we
specifically declined to seek comment on NAB's proposal asking us to
allow a Next Gen TV station (that continues to broadcast in 1.0 on its
own channel) to seek modification of its license to include 3.0
multicast (guest) streams aired on a 3.0 host station, even if it is
not simulcasting those multicast streams in a 1.0 format. Thus, we do
not address the comments we nevertheless received on this issue. We
note, however, that under our existing rules, a Next Gen TV station may
air 3.0 non-simulcast multicast streams on its own 3.0 facility. This
is because, under our existing rules, a Next Gen TV broadcaster does
not have to simulcast its multicast streams in 1.0 and does not need
separate license authorization to air its own multicast streams on its
own 3.0 facility.\34\
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\33\ Because at this time our rules do not allow Next Gen TV
stations to license host capacity for 3.0 non-simulcast multicast
streams, we do not address the issue of a 3.0 host capacity limit.
\34\ Consequently, a Next Gen TV station that converts its own
facility to 3.0 could air a ``demo'' multicast stream without
simulcasting such stream in 1.0.
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D. Limits on Licensing of Host Capacity
18. In response to our request for comment on ensuring that a Next
Gen TV broadcaster does not use the interim flexibility proposed in
this FNPRM to aggregate capacity beyond that which is
[[Page 45353]]
legally permissible today, we find that it is appropriate to limit a
Next Gen TV station's 1.0 host capacity to that which it could deploy
on its own 1.0 channel and adopt a modified version of NAB's proposal
in order to effectuate this limit.\35\ Specifically, a Next Gen TV
station that has converted its own facility to 3.0 must not license
more capacity on partner host stations, in the aggregate, than the
station could use if it were still operating its own facility in 1.0. A
Next Gen TV station must demonstrate compliance with this rule in its
license application and may do so by either: (1) showing that it is
seeking hosting only for streams it was broadcasting on its own 1.0
facility prior to its transition to 3.0; or (2) by providing an example
of another 1.0 station that is carrying or has carried the same or a
similar programming lineup to that which it seeks to provide on host
stations and at the same resolutions. To enable the Commission and
other interested parties to evaluate compliance with the host capacity
limit, a Next Gen TV station applicant will be required to provide
information regarding each of its licensed streams. Stations may also
be asked to submit additional information to the Commission upon
request.
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\35\ We also sought comment on a specific NAB proposal to
address this concern, limiting the scope of hosting arrangements by
requiring that ``[i]n arranging for the hosting of its programming,
no individual broadcaster shall partner with other stations to host,
in the aggregate, more programming than such station could broadcast
on its own facilities based on the then-current state of the art for
television broadcasting as evidenced by other television stations
then operating with the same standard.'' Even at the time of
proposing this language, however, NAB noted that it did not consider
such a limitation necessary. We note that one 6 MHz channel provides
a station with approximately 19.4 Mbps of capacity. Although the
FNPRM referred to ``spectrum aggregation,'' we agree with NAB that
this concern is more accurately described as capacity aggregation
and that this concept, and our implementation of NAB's proposal,
also encompasses many of the concerns discussed in the FNPRM about
``programming aggregation.'' As noted in the Ownership Issues
section, some concerns about ``programming aggregation'' are better
addressed in the quadrennial proceeding.
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19. We agree with commenters asserting that a reasonable limit on
the amount of host capacity that may be licensed by an individual Next
Gen TV (guest) station is appropriate. As these commenters suggest,
this is needed in order to ensure that no station abuses the
flexibility permitted by 1.0 non-simulcast multicasting to aggregate
capacity beyond that which is physically possible or legally
permissible when broadcasting from a single facility. We believe this
is necessary because it is not our intention to upend the entire
structure of broadcast television licenses for this transition period,
and we are conscious of the consumer confusion that may be
inadvertently caused by the coverage changes inherent in a multiple-
host approach. We see no reason, as a matter of spectrum policy, to
permit stations to use more capacity on hosts than they could on their
own stations. Indeed, no commenter argues that a single station should
have the ability to aggregate host capacity beyond that which it could
use if it were still operating on its own facility in 1.0.\36\
Broadcaster commenters merely argue that the likelihood of such
aggregation is small, asserting that there will be less total 1.0
capacity in a given market when a station transitions and such capacity
will only further diminish as more stations in the market transition.
We believe it is appropriate for our rules to ensure this eventuality
does not occur even if the likelihood is low, especially in light of
the fact that reduced available capacity would only amplify any
concerns about harms to competition and diversity of viewpoints if one
station were to occupy more capacity through hosts than its license
would otherwise permit. Accordingly, it is our intention that the
capacity limitation operate hand in hand with our rule permitting
licensing of 1.0 non-simulcast multicast streams.
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\36\ We also reject APTS' proposal to exempt NCE stations from
the host capacity limit. We find our rationale for establishing the
host capacity limit applies to both commercial and NCE stations.
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20. We agree with NAB that any capacity restriction we adopt should
limit stations to the capacity they could have used if they were still
broadcasting in 1.0 on their own facilities, without restricting their
ability to add or change programming streams during the transition.
Accordingly, we decline to adopt alternative proposals to the extent
they seek to address issues beyond that scope.\37\ To this end, we
adopt the substance of NAB's proposal, modifying it only to require
that stations demonstrate compliance by submitting a limited amount of
specific information at the time of application, rather than in
response to complaints. In the Next Gen TV Multicast Licensing FNPRM,
the Commission expressed concern about the specific language of NAB's
proposal, stating that ``an effective rule . . . would need to be
objective, simple for stakeholders to understand and apply, and
amenable to enforcement.'' MVPD commenters agree with this concern and
suggest an objective capacity limit based on a set number of streams,
whether a generally applicable limit or one based on the number of
streams the station provided prior to its transition to 3.0. Upon
review of the record, we are persuaded that such alternatives would be
overly restrictive and that the best metric will be the number and
resolution of streams actually airing (or that previously actually
aired) on specific 1.0 facilities.
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\37\ For example, while our rule addresses NCTA's call for
``meaningful and enforceable limits on the hosting of multicast
streams,'' we believe the group's concerns about the impact on
multicast signal carriage are better resolved in the context of
private retransmission consent negotiations or, if appropriate, the
carriage complaint process. Also, Edge Networks (Evoca) commented
``[t]he Commission should address anticompetitive practices of
broadcasters who use their control of content to restrict new market
entry and video competition.'' Evoca has clarified, however, that
its recommendations regarding retransmission consent in its initial
comments were not intended to be proposals for rulemaking.
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21. We agree with ATVA that ensuring compliance with capacity
limits associated with a single 1.0 station does not require the
Commission to engage in a technical bit-by-bit analysis of a
broadcaster's service. Rather, we conclude that reviewing basic
information about each proposed stream (particularly its network
affiliation and resolution) and considering an appropriate capacity
comparison (either the prior capacity of the station itself or the
reference point of another 1.0 station with a similar lineup at the
same resolutions and on the same type of facility (individual or
shared)) will suffice to enable the Commission to ensure a particular
broadcaster is not expanding its capacity beyond that which it could
use pursuant to the Commission's traditional 1.0 licensing regime.\38\
We find that it is reasonable to require Next Gen TV station applicants
to provide this information, which is largely consistent with the
information currently required in the Legal STA process, and therefore
reject NAB's proposal that Next Gen TV station applicants provide only
a certification without further information at the time of application.
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\38\ This approach also captures the ``state of the art,'' as
contemplated by NAB's proposed rule language, by allowing stations
to compare themselves to the most advanced peer stations both at the
outset of 3.0 service and whenever they make changes to their
lineup.
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22. We reject NAB's contention that it would be more appropriate
for the burden of discovering excessive use of capacity to be on MVPDs
and that comparison information should be provided by stations only in
response to complaints.\39\ As justification for this approach, NAB
asserts that providing
[[Page 45354]]
the capacity information in the absence of a complaint would be a waste
of both Commission and broadcaster resources. We disagree. This
capacity information--asking whether the proposed lineup could fit
within a 1.0 channel by comparing it to a similar one that has actually
aired--is necessary to make an informed objection to a proposed use of
host capacity. Further, we fail to see how providing this information
requires materially more resources than NAB's certification proposal.
Any ex ante certification of the type proposed by NAB would require the
applicant to certify that it has a reasonable belief that all of the
proposed streams could be simultaneously broadcast by the station on
its own 1.0 facility if it had one. This reasonable belief presumably
would need to be based upon the collection of the same information we
are asking the broadcaster to provide. And we are persuaded by NAB that
broadcasters will necessarily base such a belief on the actual
experience of specific stations, rather than on any sort of detailed
technical analysis. Therefore, requiring that stations preemptively
share the same public information that would be the basis of their
certification--that is, whether the same or a similar lineup has ever
previously aired--is reasonable and would not ``waste'' broadcaster
resources. Furthermore, we believe this requirement provides greater
certainty to broadcasters than a complaint process, because the showing
submitted will demonstrate compliance with the rule.\40\ Moreover, as
discussed below, providing the required information about a station's
operations during the transition period will provide much needed
transparency for the public and stakeholders.
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\39\ Because we do not rely on claims of harm to cable companies
in our decision, we do not address NAB's objections to those claims.
\40\ We note that, while NAB identifies these as ``examples'' of
ways to demonstrate compliance, neither they nor any other commenter
have proposed any other way for a station to demonstrate ``that it
could successfully transmit all hosted programming on a single ATSC
1.0 facility.''
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E. Use of Multicast Streams To Minimize 1.0 Primary Stream Service Loss
23. We adopt rules providing that, in certain circumstances, a Next
Gen TV station may simulcast its primary stream programming both on its
primary stream host and on a multicast stream carried by a different
partner station in order to minimize the impact of 1.0 primary service
loss that would result if an originating station were only able to air
its primary stream on a single host.\41\ We also adopt our tentative
conclusion that such streams will be considered a ``simulcast multicast
stream'' and count toward the host capacity limit established herein.
Accordingly, we adopt our tentative conclusion that a multicast stream
that is a second (or additional) simulcast of a primary stream must be
``substantially similar'' to the 3.0 primary stream.\42\ Broadcasters
largely support this proposal,\43\ and no commenter objected to it.\44\
We agree with broadcasters that preserving 1.0 primary service is
critically important during the transition period and that this relief
supports that goal.
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\41\ While the Bureau will consider proposals that would use
more than one multicast stream (airing primary programming), such
proposals will require the public interest showing under the non-
expedited processing standard. We expect this situation will arise
only when such streams are aired on low-power TV 1.0 hosts.
\42\ Indeed, by definition as a second (or additional) simulcast
of a 3.0 primary stream, we expect this stream will be identical to
the simulcast of the primary stream (which, by rule, must be
substantially similar to the 3.0 primary stream). See 47 CFR
73.3801(b)(1), 73.6029(b)(1), 74.782(b)(1). In addition, we adopt
our tentative conclusion that this multicast stream, like all hosted
streams, will count toward the host capacity limit established in
this Order.
\43\ We note that ONE Media and ATBA contend that this proposal
does not go far enough and that we should afford such an application
expedited processing. We reject this proposal. Considering whether
the use of a multicast stream to supplement the primary stream is
appropriate requires consideration on a case-by-case basis. The non-
expedited process allows the Bureau to collect additional
information that will be used to ensure the proposed use is in the
public interest.
\44\ Although the WNUV STA called this stream a ``supplemental
primary ATSC 1.0 simulcast stream,'' we decline to use this term and
emphasize that, contrary to the argument advanced by ONE Media, such
a stream is a multicast stream and not an additional primary stream.
As a multicast stream, this signal has no carriage rights.
Furthermore, as noted above, any service provided by such a
multicast stream beyond the station's NLSC is incidental and may not
be considered for securing any rights or benefits, now or in the
future. For example, we will reject a request by a broadcaster to
modify its market to add communities based on the service of this
multicast stream.
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24. We therefore affirm the earlier Bureau decision approving this
method of mitigating 1.0 service loss and bring such streams within the
transition licensing regime discussed herein without the need for case-
specific STAs.\45\ We expect this situation will arise only when an
applicant intends to broadcast in 3.0 on its own channel and is unable
to find a partner 1.0 host that could, on its own, provide coverage of
its primary stream to 95 percent of the applicant's 1.0 service area.
Applications seeking to use a multicast stream to supplement the
service provided by their primary stream will be considered by the
Media Bureau under the process for non-expedited applications.\46\
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\45\ As noted in that decision, applicants whose applications
are reviewed under the non-expedited processing standard are
required to minimize the impact of the expected service loss, but
the Commission did not require a specific method for doing so.
\46\ In the Next Gen TV Report and Order, the Commission
established a presumption that it would favor grant of an
application demonstrating that the station would provide ATSC 1.0
simulcast service to at least 95 percent of the predicted population
within the station's original NLSC and afford ``expedited
processing'' to such applications. A Next Gen TV applicant whose
ATSC 1.0 simulcast signal will not satisfy this 95 percent threshold
(``non-expedited applicant'') will be considered on a case-by-case
basis and must provide the following information: (1) whether there
is another possible simulcast partner(s) in the market that would
result in less 1.0 service loss to existing viewers and, if so, why
the Next Gen TV broadcaster chose to partner with a station creating
a larger service loss; (2) what steps, if any, the station plans to
take to minimize the impact of the 1.0 service loss (e.g., providing
ATSC 3.0 dongles, set-top boxes, or gateway devices to viewers in
the loss area); and (3) the public interest benefits of the
simulcast arrangement and a showing of why the station believes the
benefit(s) of granting the application outweigh the harm(s).
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25. Contrary to our tentative conclusion in the Next Gen TV
Multicast Licensing FNPRM, we do not limit this relief only to NCE
stations or commercial stations airing multicast streams on NCE partner
hosts.\47\ The Next Gen TV Multicast Licensing FNPRM asked whether this
approach would be an acceptable method for mitigating ATSC 1.0 service
loss for any other types or groups of applicants. No commenter opposed
extending this relief to other types or groups of applicants and we are
persuaded by broadcasters' comments that other similarly situated
stations may be able to show that their use of multicast streams to
minimize service loss of the primary 1.0 stream is in the public
interest.\48\ We therefore allow any Next Gen TV station to apply for
this relief under the non-expedited process, but emphasize that all
applicants must demonstrate why this relief is in the public interest
and outweighs any potential harms. As discussed in the Next Gen TV
Multicast Licensing FNPRM, we recognize that each programming stream
devoted to
[[Page 45355]]
simulcasting a primary stream is one fewer that could be devoted to
multicast programming, potentially reducing the diversity of
programming available to viewers in order to ensure the widest
availability of the most popular programming. We also note that a
station airing its primary stream programming on two hosts could be
reaching many viewers previously outside its 1.0 footprint. Thus, the
Bureau must consider whether the benefits of a given proposal outweigh
any harms, including any impacts on localism, diversity of programming
offerings, and/or viewer confusion. Finally, we emphasize that service
temporarily provided by a multicast stream that is used as a second
simulcast of a primary stream will not give rise to any rights for the
broadcaster or impose any obligations on MVPDs, and may not be
considered for purposes of securing any rights or benefits, now or in
the future.
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\47\ In proposing this approach, we supported the Bureau's prior
decision, which found that ``permitting NCE stations to participate
in the ATSC 3.0 rollout arrangements in this manner is critical to
the success of the transition,'' in large part because NCE stations
make up over 20% of all full power broadcasters.
\48\ Pearl contends that ``this [relief] is a particularly good
solution for various scenarios, such as: small markets that are
spectrum constrained; geographically large markets with a small
population, like the Butte-Bozeman DMA in Montana; and markets where
some broadcasters rely on a single full power station to serve the
market and other broadcasters have multiple stations serving the
same market, such as La Crosse-Eau Claire in Wisconsin or
Birmingham, Alabama.''
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F. Ownership Issues
26. Consistent with our decision with regard to hosted primary
streams of NextGen TV stations, hosting multicast streams on a
temporary host station's facility will not result in attribution under
our broadcast ownership rules or for any other requirements related to
television stations attribution (e.g., filing ownership reports). In
the Next Gen TV Multicast Licensing FNPRM, we asked whether the
temporary nature of the exemption and our desire to minimize viewer
disruption while facilitating the 3.0 transition made the hosting of
multicast streams similar enough to the hosting of primary streams to
warrant the same approach. We are persuaded by the record that they do.
Broadcaster commenters support this approach, maintaining that the
hosting of multicast streams would further the same objectives as
primary stream hosting. Consistent with the need articulated by
broadcasters, we emphasize that the new flexibility we grant herein is
intended to serve the purpose of minimizing viewer disruption, and we
find that the clear benefits of such an approach for viewers outweigh
any potential for abuse under our ownership rules that some commenters
have raised. This decision does not change the Commission's broadcast
ownership rules in any substantive way and certainly does not alter the
number of stations a broadcaster can own in a particular market. As
discussed in the Next Gen TV Multicast Licensing FNPRM, ATVA and others
have raised concerns in the 2018 Quadrennial Review proceeding about
the practical impact of the ownership rules in light of the growing
practice of placing Big-four network programming on multicast streams.
We find that those concerns are best addressed in the Quadrennial
Review context, not least because any decision made in that proceeding
with respect to Big-four network affiliations will apply to all
licensed multicast streams, hosted or otherwise.
G. Same-Service (or ``Lateral'') Hosting
27. We adopt our tentative conclusion declining at this time to
license same service (or ``lateral'') hosting arrangements, though we
are open to considering such arrangements in limited circumstances.
Same-service (or ``lateral'') 1.0 hosting refers to a situation in
which a Next Gen TV station still operating its own facility in 1.0 and
serving as a 1.0 host for another Next Gen TV station that converted
its facility to 3.0 seeks to relocate one or more of its own multicast
streams to another 1.0 host station. We are not convinced that a
general rule as proposed that would permit this practice is necessary
to minimize viewer disruption during the transition. Even advocates for
a rule concede that the hypothetical problems it could resolve would
occur only rarely. Given the lack of any demonstrated need to allow
such arrangements in all markets, we refrain from adopting a general
rule at this time. Nonetheless, as discussed below, we will entertain
requests for special temporary authority to permit 1.0 same-service
hosting and may revisit this decision once we have more experience with
situations in which such flexibility may be necessary to enable a
market to transition.\49\
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\49\ We recognize that most broadcasters strongly support
lateral hosting, seeking maximum flexibility under our licensing
regime.
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28. BitPath and other commenters contemplate scenarios in which
multiple Next Gen TV stations across a market would shift streams from
station to station in order to facilitate their move toward 3.0. For
example, broadcasters in the New York DMA (the New York City market)
have argued that multiple stations engaging in same-service hosting is
a business necessity in order to maximize the number of stations
willing to transition simultaneously. On the current record, however,
there is no evidence that same-service hosting is technically necessary
to make any market's transition possible. Indeed, there has only been
one instance in which a Next Gen TV broadcaster sought Commission
approval to keep its facility in 1.0 while shifting some 1.0
programming to a host. That station and that market, however, were
ultimately able to begin the transition without any ``lateral''
hosting, and the station also retained enough capacity that it has
since added yet another 1.0 stream to its lineup.
29. Furthermore, there is potential for abuse in a lateral hosting
scenario, particularly given the continuing uncertainty around the
ultimate duration of the transition. For instance, preventing the
aggregation of excess capacity in such a scenario would require a more
complex capacity limitation rule than is supported by our record. This
is particularly true given the need to consider not just programming
but any ancillary and supplementary services being provided over a
station's own facility. In the absence of such protections, a station
relying on same-service hosts could potentially use significantly more
capacity than is permitted under its license, even while complying with
the capacity limit rule adopted today. The record simply does not
demonstrate that creating such potential for confusion and abuse is
justified by any countervailing need.
30. We will, however, consider requests for special temporary
authority in those rare circumstances in which relief may be necessary
to ensure that a market can transition effectively. We expect that
addressing any potential issues using this process will allow us to
monitor the changing state of the market as the transition moves
forward and to collect more information about any situations that arise
in which there is a technical need for this type of ``lateral''
flexibility. Indeed, the STA process provided valuable, real-world
information that helped inform our decisions in this item. Finally,
broadcasters have argued in this proceeding that the appropriate
measure of how much programming a 1.0 station is capable of airing is
whether any 1.0 station is airing or has previously aired the same or a
similar programming lineup at the same resolutions. We agree and we
direct Media Bureau staff to review and process any potential STA
requests (and the inherent potential of any such requests to expand
broadcasters' capacity as described above) in light of this
``historical'' approach, which we have adopted elsewhere in this Order
to limit capacity in the multicast hosting context.\50\
[[Page 45356]]
Furthermore, as noted above, same-service hosting is limited to a host
station's multicast stream (i.e., a host station's own primary stream
is not eligible for lateral hosting). And while the Media Bureau will
have flexibility to review the particular circumstances of each case,
we expect that staff will consider the potential impact on over-the-air
availability of programming that has significant viewership (e.g., the
stream is ranked in the top 4 in the market or would cause viewers to
lose their only source of noncommercial or major network programming)
or specifically provides children's programming in the station's
service area.
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\50\ Such requests must clearly identify any programming that
would be discontinued in the absence of an STA and explain why there
is no reasonable alternative to the requested reliance on a same-
service host and how viewer impacts will be minimized (e.g., is the
same stream available to viewers in any loss area from another
station in the same or adjacent market). STAs will be granted for a
period of 180 days and must be subsequently renewed.
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H. Rules Applicable to Multicast Streams Aired on a Host Station
31. With respect to the other ATSC 3.0 transition rules, except as
detailed in this Order, we will apply the same rules to simulcast and
non-simulcast licensed multicast streams as we currently apply to
primary simulcast streams, consistent with our tentative
conclusions.\51\ These rules are intended to protect consumers from
service disruption, especially the loss of access to the 1.0 television
programming they currently watch, without restricting broadcasters'
ability to choose to participate in the voluntary, market-driven
transition to ATSC 3.0. We believe these proposals best balance the
goal of preserving maximum availability of multicast streams with the
reality that broadcasters could simply decline to air multicast streams
if our rules are too burdensome.
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\51\ The rules at issue are those found in Sec. Sec. 73.3801,
73.6029, and 74.782 of the Commission's rules (each entitled
``Television Simulcasting''). These include simulcast arrangements
and agreements (47 CFR 73.3801(a) and (e), 73.6029(a) and (e),
74.782(a) and (f)); the simulcasting requirement (47 CFR 73.3801(b),
73.6029(b), 74.782(b)); contour, DMA, and community of license
coverage requirements (47 CFR 73.3801(d) and (f)(5)-(6), 73.6029(d)
and (f)(5)-(6), 74.782(e) and (g)(5)-(6)); MVPD notice requirements
(47 CFR 73.3801(h), 73.6029(h), 74.782(i)); consumer education
provisions (47 CFR 73.3801(g), 73.6029(g), 74.782(h)); and licensing
procedures (47 CFR 73.3801(f)(2), 73.6029(f)(2), 74.782(g)(2)). No
commenters specifically addressed these requirements.
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32. Coverage rules. As proposed in the Next Gen TV Multicast
Licensing FNPRM, we will apply the DMA and community of license
coverage requirements to all multicast streams but will not consider
those streams when determining whether a station qualifies for
expedited processing. Thus, 1.0 multicast streams aired on a host
channel must continue to cover the guest station's entire community of
license and the host station must be assigned to the same DMA as the
originating station.\52\ For 3.0 multicast streams aired on a host
channel, as with 3.0 primary streams aired on a host channel, only the
DMA requirement applies.\53\ When determining whether a station seeking
to transition is eligible for expedited processing, however, we will
continue to ask only whether the primary stream will remain available
in 1.0 to at least 95% of a station's current OTA audience.\54\
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\52\ As proposed in the Next Gen TV Multicast Licensing FNPRM
and noted below in the paragraphs discussing updates to Form 2100,
Next Gen TV applications must note the predicted percentage of
population within the station's NLSC that will be served by each
multicast stream host.
\53\ No commenter specifically addressed this proposal.
\54\ In the Next Gen TV Report and Order, the Commission
established a presumption that it would favor grant of an
application demonstrating that the station would provide ATSC 1.0
simulcast service to at least 95 percent of the predicted population
within the station's original NLSC and afford ``expedited
processing'' to such applications.
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33. Although commenters generally do not oppose this approach, some
commenters support variations to it. A small number of broadcasters
suggest that the rule should require only a host in the same DMA
without a requirement regarding the community of license. They express
concern that it will be challenging in the future for stations to find
host partners that can fully cover their community of license. ATVA, on
the other hand, contends that no station should receive expedited
processing unless all of its multicast streams meet the 95% coverage
threshold or if the station pledges to deliver signals to MVPDs. We
reject these proposals. With respect to both of these concerns, we
emphasize that retaining a station's 1.0 service to its community of
license remains our priority under current marketplace conditions. We
will review each application--including any unique characteristics of
the market involved--as it arises.
34. Finally, as proposed in the Next Gen TV Multicast Licensing
FNPRM, for children's programming on a multicast stream to count toward
the originating station's children's television Core Programming
requirement, the multicast stream must either be carried on the same
host as the originating station's primary stream or on a host that
serves at least 95% of the predicted population served by the
applicant's pre-transition 1.0 signal. Commenters do not oppose this
proposal, although the Broadcasting Alliance proposed that we combine
hosts of multiple ``copies'' of a multicast stream to determine whether
that stream is reaching 95% of the relevant population. While we do not
bar stations from airing identical content on multiple hosted multicast
streams, we decline to adopt this alternative on the grounds that it
would incentivize inefficient use of limited 1.0 capacity.
35. Licensing. As proposed in the Next Gen TV Multicast Licensing
FNPRM, we will apply our licensing process for primary simulcast
streams to guest multicast streams aired on a host station.\55\ No
commenter opposes this proposal. Thus, upon grant of an application,
each of an originating station's multicast streams aired as a guest
stream on a host will be licensed as an additional temporary channel of
the originating broadcaster. We also adopt our unopposed tentative
conclusion that commonly owned stations are not required to enter into
written agreements for the hosting of either primary or multicast
streams, consistent with the process the Bureau uses for handling the
hosting of primary streams on commonly owned stations.
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\55\ Under these rules, a Next Gen TV station could seek to
obtain separate authorizations for each host station used to air any
programming stream and would no longer be limited to the two
authorizations contemplated in the Next Gen TV First Report and
Order.
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36. Form 2100. We adopt the Next Gen TV Multicast Licensing FNPRM's
proposal to modify our Next Gen TV license application form (FCC Form
2100) to accommodate multicast licensing by collecting information
similar to that already collected in the STA process.\56\ Broadcasters
generally support a requirement to file the same information they
currently provide when seeking to transition, though other commenters
suggest the filing should be more extensive. NAB asserts that licensees
should not have to file any information at all about multicast streams.
We reject NAB's argument. We note that our rules do not prohibit the
use of private contractual arrangements for partner stations to air
their multicast streams. For regulatory compliance purposes, such
streams would be considered multicast streams of the host partner
station, not the originator station. To the extent stations seek
instead to modify their license to include multicast streams hosted by
partner stations, both the Commission and the public need visibility
into the basic terms of that hosting relationship. Such transparency
will ensure compliance with our rules, particularly compliance with the
host capacity limit (see section III.D, above.). We therefore
[[Page 45357]]
will require certain additional information as an addendum to Form 2100
if stations seek to include hosted multicast streams within their
license. We also clarify and slightly modify the requirements of our
rules governing Form 2100 to reflect the possibility of reliance on
multiple hosts.
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\56\ We direct the Media Bureau to revise Form 2100 as needed to
implement these changes, and to process applications filed using
Form 2100.
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37. Specifically, applicants must prepare an exhibit identifying
each proposed hosted stream and provide the following information about
each stream, as broadcast:
the host station;
channel number (RF and virtual);
network affiliation (or type of programming if
unaffiliated);
resolution (e.g., 1080i, 720p, 480p, or 480i);
the predicted percentage of population within the noise
limited service contour served by the station's original ATSC 1.0
signal that will be served by the host, with a contour overlay map
identifying areas of service loss and, in the case of 1.0 streams,
coverage of the originating station's community of license; and
whether the stream will be simulcast, and if so, the
``paired'' stream in the other service.
Finally, the exhibit must either state that the applicant will be
airing the same programming that it is airing in 1.0 at the time of the
application or identify the station that has aired or is airing the
same or a similar programming lineup at the same resolutions on the
same type of facility (individual or shared), as well as that station's
lineup (with resolutions). This exhibit must be placed on the
applicant's public website or in the applicant's online public
inspection file if the station does not have a dedicated website,\57\
with a link provided in the application. This information is consistent
both with that currently collected in STA applications and the approach
identified in the Next Gen TV Multicast Licensing FNPRM.\58\ As with
broadcast licenses generally, modifications to this license application
or its accompanying exhibit (with respect to the primary or multicast
streams) must be preceded by the filing and approval of a new
application. Changes to the affiliation or content of a stream, or the
elimination of a stream, however, do not implicate the concerns raised
in this proceeding if they would not result in the use of additional
capacity and if information about the change is easily available to the
public. Therefore, in order to streamline this process for both
broadcasters and the Commission, such changes may be implemented
without prior Commission approval. They need only be reflected in a
timely update to the exhibit that the applicant makes available on its
public website or in the applicant's online public inspection file and
in an email notice to the Chief of the Media Bureau's Video Division.
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\57\ See https://publicfiles.fcc.gov/. If a station has neither
a public website nor an online public inspection file, it will be
considered in compliance with this requirement if it publishes the
exhibit in a local newspaper identified in its application. Any
changes to the exhibit will require publication of the revised
exhibit.
\58\ While the Next Gen TV Multicast Licensing FNPRM did not
specifically mention identification of the ``pair'' of each
simulcast stream (that is, the specific stream in the other service
that is carrying substantially similar programming), we believe the
need for this information logically arises from the question about
whether a stream will be simulcast in situations where there is more
than one simulcast stream.
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38. Timing. As proposed in the Next Gen TV Multicast Licensing
FNPRM, the rules adopted in this Order will apply until and unless the
Commission eliminates the mandatory local simulcasting requirement.
Commenters generally support this approach, which will preserve
existing 1.0 viewership while giving broadcasters the flexibility to
transition to 3.0. MVPD commenters support the proposed timing with
respect to simulcast multicast streams, but propose that the rule
permitting non-simulcast 1.0 multicast streams should sunset after five
years. Broadcasters oppose this proposal, arguing it is contrary to the
public interest. We agree that establishing a prescribed sunset for the
non-simulcast multicast licensing rules adopted in this Order could
lead to a sudden reduction in the availability of 1.0 programming,
harming consumers. We therefore decline to adopt a sunset of the non-
simulcast multicast and will continue to encourage broadcasters to
maximize their 1.0 service throughout the transition in order to
minimize the disruption to consumers.
I. Substantially Similar Rule
39. Based on the existing record, we retain the substantially
similar rule at this time and extend the sunset date to July 17,
2027.\59\ In the Sunsets FNRPM, we sought comment on whether we should
retain the substantially similar rule or permit it to sunset in July,
2023. After consideration of the state of the transition reflected in
the record of this proceeding, we find this rule continues to be
necessary at this time for the same reasons it was adopted, to protect
consumers by ensuring that OTA viewers who rely on 1.0 are able to
continue watching the same programming they watch today, as well as any
new programming offerings on a broadcaster's primary channel that can
be reasonably provided in 1.0 format.\60\ Based on the current record,
we find that broadcasters' market incentives alone are insufficient to
protect OTA viewers from potential loss of 1.0 service. Furthermore, we
find that there has not yet been a sufficient shift in the marketplace
that would justify elimination or modification of the substantially
similar rule. Moreover, we see no evidence on the record that the
substantially similar rule is currently impeding, or is likely in the
near future to impede, the provision of innovative 3.0 features and
content. The rule as it stands affords significant flexibility for
broadcasters to innovate and experiment with new programming features
using 3.0 technology because it does not require broadcasters to
duplicate enhanced content or features that cannot reasonably be
provided in the 1.0 format. Furthermore, broadcasters provide no reason
why programming aired on the 3.0 primary stream that can reasonably be
provided in 1.0 format should not be provided in such format. On the
other hand, eliminating the substantially similar rule at this time, in
light of the current state of the transition, poses a risk of harm to
OTA viewers who rely on 1.0, particularly vulnerable consumers, who
without the rule could be forced to either purchase new 3.0 equipment
or lose access to stations' primary programming.
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\59\ We note that the requirement to simulcast in 1.0 is
intended to be temporary and will be eliminated when the transition
to 3.0 is complete.
\60\ The Commission has explained that it will not apply the
substantially similar rule to certain enhanced capabilities that
cannot reasonably be provided in ATSC 1.0 format. These capabilities
include ``hyper-localized'' content (e.g., geo-targeted weather,
targeted emergency alerts, and hyper-local news), programming
features or improvements created for the 3.0 service (e.g.,
emergency alert ``wake up'' ability and interactive programming
features), enhanced formats made possible by 3.0 technology (e.g.,
4K or HDR), and any personalization of programming performed by the
viewer and at the viewer's discretion. While some of these
capabilities may be theoretically possible within the ATSC 1.0
framework, they are not currently part of the ATSC 1.0 standards,
are unlikely to be included in current consumer equipment, and as
such cannot reasonably be provided via ATSC 1.0.
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40. The purpose of the substantially similar rule is to give effect
to the underlying requirement to ``simulcast'' 3.0 programming in 1.0,
protecting 1.0 viewers from losing access to a Next Gen TV station's
programming when that station transitions its facility to 3.0. While
the underlying simulcast requirement that a Next Gen TV broadcaster
must continue to air a primary 1.0 signal (when deploying that signal
in 3.0) ensures 1.0 viewers
[[Page 45358]]
continue to receive one free OTA TV signal during the transition, the
substantially similar rule ensures that 1.0 viewers actually receive
the same primary programming as that aired on the 3.0 channel,
including new programming to the extent that such programming can
reasonably be provided in 1.0 format. Thus, these rules work in tandem
to ensure that viewers are protected during the transition period. As
the Commission explained in the 2017 First Next Gen TV Report and
Order, ``it is important not only to require that television
broadcasters continue to broadcast in the current ATSC 1.0 standard
while ATSC 3.0 is being deployed, but also that they continue to air in
ATSC 1.0 format the programming that viewers most want and expect to
receive. We seek to ensure that broadcasters air their most popular,
widely-viewed programming on their 1.0 simulcast channels so that
viewers are not forced to purchase 3.0 capable equipment simply to
continue to receive this programming rather than because they find the
ATSC 3.0 technology particularly attractive.''
41. The record of this proceeding does not provide a basis for us
to conclude that the substantially similar rule is no longer needed at
this time for the same purposes it was originally adopted. Without the
substantially similar rule, Next Gen TV broadcasters would be free to
air the most desirable programming, including popular existing
programming and new program offerings that could reasonably be provided
in 1.0 format, only on their 3.0 primary programming stream. This could
create two different tiers of free, OTA television service, which we
find would not be in the public interest.\61\ We agree with NCTA and
PK/OTI that this would ``plac[e] viewers at risk of losing access to
popular programming should they be unwilling or unable to pay for this
new [3.0] equipment.'' In particular, PL/OTI notes that lower-income
consumers could be especially vulnerable. Furthermore, at this stage of
the transition, we agree that many consumers may find there to be a
lack of affordable 3.0 TV equipment.\62\
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\61\ In recognition of the capacity constraints imposed by the
transition, the Commission has already given broadcasters
flexibility with respect to the resolution and coverage of 1.0
primary streams, and the availability of 1.0 multicast streams. In
contrast to these situations, 1.0 capacity constraints do not
prevent the provision of substantially similar programming,
particularly since Next Gen TV broadcasters are not required to
simulcast programming that cannot reasonably be aired in 1.0 format.
NAB contends the Commission's discussion of the potential
development of two tiers of programming ignores that ``[t]here
already are two tiers of programming service: pay and free.'' NAB
asserts that ``the Commission does not require other actors in the
communications marketplace, including those with which broadcasters
compete, to intentionally slow the pace of innovation when they
upgrade their technology to avoid creating different tiers of
service.'' NAB further states that ``[b]roadcasters are the only
entities the Commission regulates that are required to provide a
free service.'' We remind broadcasters that, as trustees of the
public airwaves, they are required by statute to serve the ``public
interest, convenience, and necessity.'' 47 U.S.C. 309(k)(1). Next
Gen TV stations may have only one primary programming stream, which
they are required to simulcast in 1.0. Finally, we note that
broadcasters are not the only regulatees with public interest
obligations. For example, cable operators and satellite carriers are
required to carry qualified broadcast stations that request
mandatory carriage. 47 U.S.C. 338, 534, 535. Also, satellite
carriers are required to reserve a percentage of channel capacity
for noncommercial educational or informational programming, 47
U.S.C. 335(b)(1); and cable operators are required to set aside
channel capacity for commercial use by unaffiliated video
programmers. 47 U.S.C. 532.
\62\ The record indicates, as of August 8, 2022, there were
approximately 120 models of television sets with 3.0 tuners
available in the United States from four manufacturers, but these
are mid- to high-end TV sets. According to Pearl, the lowest cost
3.0 TV set is available to consumers at retail for $549.00. The
lowest cost separate 3.0 receiver (gateway device) is available at
retail for $199.
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42. We find that broadcasters' market incentives alone cannot be
relied upon to ensure that all 1.0 viewers are able to continue to
access stations' primary programming without incurring significant
costs; this is particularly of concern with respect to vulnerable
consumers who are often slow to adopt new technology.\63\ We recognize
that broadcasters may have strong incentives to offer substantially
similar simulcast programming early in the transition. Broadcasters
contend that the market will protect all viewers, but as discussed
below these assertions often come with qualifications and caveats.
Broadcasters have willingly made significant investments in ATSC 3.0
technology, claiming it is necessary to remain competitive in the video
marketplace. Thus, while they do have incentives to provide their most
popular programming to all of their viewers, they also have incentives
to promote their ATSC 3.0 offerings. We recognize that broadcasters do
incur some costs by offering programming in both 1.0 and 3.0 to ensure
uninterrupted service to current OTA viewers. If the transition
progresses and the number of OTA viewers who rely on 1.0 declines,
broadcaster incentives to serve 1.0 viewers may weaken as the benefits
shrink relative to those costs. These weakened incentives would be a
direct result of the success of the transition as more and more OTA
viewers migrate to 3.0. Some broadcasters state that they have every
incentive to ``maximize'' viewership, but those arguments more
correctly appear to focus on maximizing profits, which will not
necessarily support the needs of OTA 1.0 viewers for the length of the
transition, particularly when that audience is split between two
different services.\64\ Broadcaster commenters acknowledge that even
these incentives hold only ``while the vast majority of viewers
continue to watch [1.0 signals].'' Given our decision herein to extend
the sunset date, the Commission can consider the status of incentives
based on the viewership at the time the requirement is set to expire.
The current record demonstrates that the substantially similar element
of the simulcast rule remains important to the transition at this time,
in order to provide certainty to those who continue to rely on 1.0.
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\63\ We note that if it were true that broadcasters have no
incentive to favor their 3.0 offerings, then our rule would simply
codify broadcasters' commitment and would not impede any
innovations.
\64\ There is no evidence in the record regarding the financial
impact on broadcasters of losing a declining number of 1.0 OTA
viewers, particularly older and lower income viewers who may not be
favored by advertisers. We also note that many broadcasters receive
significant revenue from retransmission consent fees, which would
not seem to be directly impacted by any loss in OTA viewership.
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43. Furthermore, most broadcasters are not committing to make new
programming available to all viewers. Indeed, many seem to indicate
that, if the substantially similar rule were eliminated, they would
provide new, 3.0-exclusive programming on their primary streams even if
such programming could reasonably be provided in 1.0 format.\65\ We
recognize that broadcasters are incurring costs by simulcasting and are
eager to complete the transition to pursue higher OTA viewership and
new revenue opportunities (via broadcast internet services) in the long
term. Thus, it is not surprising that broadcasters are already
contemplating ``trade-offs'' like the ``loss or degradation of 1.0
programming'' in the near future absent regulatory requirements to the
contrary. Given the above, and based on the current record, we are not
convinced market incentives alone will protect viewers who rely on 1.0.
Moreover, we remind broadcasters that, as trustees of the public
airwaves, they have a statutory obligation to serve the public
interest, even where market
[[Page 45359]]
incentives might temporarily push in a contrary direction.\66\
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\65\ As discussed below, to the extent such 3.0 content cannot
reasonably be provided in 1.0, broadcasters are free to provide such
programming only in 3.0 under the current rule. However, if such
content can reasonably be provided in 1.0, then it illustrates the
benefits of the current rule for viewers.
\66\ See 47 U.S.C. 309(a) (requiring the Commission to
determine, in the case of applications for licenses, ``whether the
public interest, convenience, and necessity will be served by
granting such application''); 47 U.S.C. 307(b) (requiring the
Commission to ``make such distribution of licenses, frequencies,
hours of operation, and of power among the several States and
communities as to provide a fair, efficient, and equitable
distribution of radio service to each of the same'').
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44. Furthermore, we find that the substantially similar rule is not
presently impeding innovation in broadcast programming. Broadcasters
assert that the rule is preventing them from innovating with 3.0
content and features. However, nothing in the current record supports
this.\67\ The current rule expressly allows broadcasters to innovate
and experiment with new, innovative Next Gen TV programming features,
including on their primary streams.\68\ Broadcasters identify only two
specific examples of potential innovation hampered by the rule, neither
of which withstands scrutiny. First, Pearl seems to suggest that the
rule prevents broadcasters from airing
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\67\ Next Gen TV broadcasters do not have to duplicate enhanced
content or features that cannot reasonably be provided in the 1.0
format. As stated above, this includes: ``hyper-localized'' content
(e.g., geo-targeted weather, targeted emergency alerts, and hyper-
local news), programming features or improvements created for the
3.0 service (e.g., emergency alert ``wake up'' ability and
interactive programming features), enhanced formats made possible by
3.0 technology (e.g., 4K or HDR), and any personalization of
programming performed by the viewer and at the viewer's discretion.
\68\ Stations broadcasting in 3.0 over their own facilities can
experiment with innovative 3.0 multicast streams that are not
subject to simulcast requirements.
``a `barker' or demo channel of 3.0 programming, showcasing the new
technology and demonstrating how viewers can unlock the many advanced
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features that ATSC 3.0 makes possible.''
We observe that a ``demo channel'' would presumably not be a station's
primary stream.\69\ As for a multicast stream, we reiterate our
clarification that any Next Gen TV station that converts its own
facility to 3.0 (including a 3.0 host) could air a ``demo'' multicast
stream, including content from its guest partners and other stations in
the market, without simulcasting such a stream in 1.0.\70\ Second,
Graham seems to suggest that the rule prevents broadcasters from airing
``alternate interactive programming or expanded local programming''
only in 3.0. It is unclear what Graham means by ``expanded local
programming'' as a unique 3.0 feature, but the substantially similar
rule expressly permits ``hyper-local news'' and ``interactive program
features.'' To the extent any ``expanded local programming'' provided
on a primary stream could reasonably be provided in 1.0 format, we
agree such programming must be simulcast in substantially similar
fashion in 1.0 format to comply with the rule. However, to the extent
programming can reasonably be provided in 1.0 format, we fail to see
how such programming could be considered innovative programming reliant
on the enhanced capabilities of 3.0 technology.
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\69\ We note, however, that ``demo'' programming aired on a
primary stream would likely be covered by the rule's exception for
``advertisements, promotions for upcoming programs, and programming
features that are based on the enhanced capabilities of ATSC 3.0.''
\70\ To the extent that 3.0 guests can show good cause why they
need to license a ``demo'' channel on a host (rather than having the
host air such demo channel), we will consider limited waiver
requests to license such non-simulcast 3.0 multicast guest streams.
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45. As a result of the current status of the transition reflected
in the record, we conclude that the sunset of the substantially similar
rule is unnecessary at this time. We note, however, that the pace of
the transition has necessarily been impacted by the recent pandemic. As
the transition continues and the consumer equipment market evolves, the
impact of eliminating or modifying the substantially similar
requirement may change. We therefore find that it would be appropriate
to revisit this issue in the future once the transition has had more
time to advance. Moreover, we anticipate that the Commission's recently
announced ``Future of TV'' public-private initiative, which will be led
by the National Association of Broadcasters (NAB), will provide
additional information on the pace and nature of the transition. These
insights, including any proposals discussed by partnership stakeholders
in this initiative, can help inform any potential changes to the
substantially similar requirement. Accordingly, we adopt a new sunset
date of July 17, 2027. Given the ongoing transition, we believe at this
time that this is an appropriate sunset period.\71\ This date will
allow for the opportunity of material changes to the transition such
that a subsequent review is warranted. Consistent with the previous
sunset, the Commission will initiate a review approximately one year
before the requirement is set to expire to seek comment on whether it
should be extended based on marketplace conditions at that time. This
balanced approach will provide 1.0 viewers with needed certainty while
giving broadcasters an additional opportunity to demonstrate that the
substantially similar requirement should be eliminated or modified.
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\71\ While, at present, a small number of converter devices that
work with the television sets in viewers' homes are available for
purchase, we expect more will come to market in coming years and
that the price should come down. For example, another 3.0-to-1.0
set-top-box has recently been announced by ADTH, which would be the
lowest priced converter device to date. According to ADTH, its
``NEXTGEN TV Box'' is scheduled to ship in July 2023. It costs
$119.99, but it is available for pre-order at the discounted price
of $79.99 for a limited time. The Commission can consider the
availability and cost of such devices in subsequent reviews of the
substantially similar rule.
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J. Requirement To Comply With the ATSC A/322 Standard
46. Based on the existing record, we retain the A/322 requirement
at this time and extend the sunset date to July 17, 2027. In the
Sunsets FNPRM, we sought comment on whether we should retain the
requirement that Next Gen TV broadcasters' primary video programming
stream must comply with the ATSC A/322 standard and, if so, for how
long. In response to the record, we find the A/322 requirement remains
necessary to protect consumers and other stakeholders. We further find
that the rule does not presently impede broadcasters' ability to
innovate. As discussed below, the record shows that the standard itself
provides broadcasters with significant flexibility, and the requirement
to comply with the standard applies only to a broadcaster's primary
programming streams. Consistent with the rule, broadcasters have ample
opportunity to innovate with other broadcast streams, as well as with
non-broadcast 3.0 services (also known as Broadcast Internet).
47. We find that the A/322 requirement remains essential at this
time for protecting both innovators and investors in the 3.0 space,
allowing stakeholders to develop and purchase equipment with
confidence. As Pearl TV notes, the rule gives ``key certainty'' to
television receiver manufacturers, affording them the confidence to
build Next Gen TV equipment and bring it to market knowing that it will
reliably work with 3.0 signals now and in the future. It likewise
protects consumer investments in 3.0 technology by ensuring that 3.0 TV
sets and other 3.0 equipment they purchase are, and will remain,
compatible with primary 3.0 signals. We agree with LG that
``[c]onsumers have purchased ATSC 3.0-enabled equipment with the good
faith expectation that it will be able to properly receive and decode
an ATSC 3.0 signal not just at the time of purchase, but for years to
come.'' For similar reasons, the rule will also benefit MVPDs as they
begin to receive
[[Page 45360]]
and retransmit 3.0 broadcast signals to their subscribers. Indeed,
broadcasters themselves benefit from the certainty the rule provides,
by knowing that every viewer in their markets who purchases a 3.0 set
will be able to receive their primary programming. Compliance with A/
322 may also help prevent harmful interference to and by broadcasters,
which benefits every stakeholder and consumer. Given these benefits,
almost all commenters support retention of the A/322 rule. We agree
with LG that ``if a broadcaster used a standard other than A/322 for
transmission of its primary broadcast stream, consumers would be unable
to obtain the broadcaster's programming because support for that
bespoke standard would not be incorporated into the consumers'
devices.''
48. Furthermore, the record does not demonstrate any current or
likely harms arising from the rule at this time. The only commenter to
oppose even an extension of the requirement, One Media, identifies no
harms associated with this specific rule and makes no effort to grapple
with its benefits. Instead, One Media contends that broadcasters should
not have ``to keep coming back to seek government approval each time
the standard changes'' and should not have ``standards codified into
their services' rules'' but should instead simply be required to avoid
interference. With respect to the first concern, the Commission has and
will independently monitor the evolution of the ATSC 3.0 standard and
will act to update our rules as necessary and appropriate, as we do in
this Order. As for One Media's general objection to codified standards,
adoption of A/322 into our rules will ensure that broadcasters are
serving the public interest, for the reasons above.
49. Ultimately, we find that the current record does not support
sunsetting the A/322 standard at this time. The rule currently provides
needed protection to consumers, while also affording significant
flexibility to broadcasters. Nevertheless, we agree with commenters
that urge the Commission to continue to monitor the marketplace and the
standard as they develop.\72\ Accordingly, in order to align this
review with that of the substantially similar requirement, we adopt a
new sunset date of July 17, 2027. As noted above, the Commission will
initiate a review approximately one year before the requirement is set
to expire to seek comment on whether it should be extended based on
marketplace conditions at that time. This balanced approach will
provide needed certainty while also providing an additional opportunity
to demonstrate that the A/322 standard should be eliminated or
modified.
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\72\ The Sunsets FNPRM sought comment on whether to update our
rules to incorporate the 2021 version of the A/322 standard.
Commenters on this issue support updating our rules, but pointed out
that a more recent version of A/322 was published by ATSC in March
2022. However, since the comment period closed, there have been two
more updates to A/322, and we have not received any comments about
this new version. Therefore, we decline to update our rules at this
time and will seek comment on this issue in a future proceeding.
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50. Digital Equity and Inclusion. The Commission, as part of its
continuing effort to advance digital equity for all,\73\ including
people of color, people with disabilities, people who live in rural or
Tribal areas, and others who are or have been historically underserved,
marginalized, or adversely affected by persistent poverty or
inequality, invites comment on any equity-related considerations \74\
and benefits (if any) that may be associated with the proposals and
issues discussed herein. Specifically, we seek comment on how our
proposals may promote or inhibit advances in diversity, equity,
inclusion, and accessibility, as well the scope of the Commission's
relevant legal authority.
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\73\ Section 1 of the Communications Act of 1934 as amended
provides that the FCC ``regulat[es] interstate and foreign commerce
in communication by wire and radio so as to make [such service]
available, so far as possible, to all the people of the United
States, without discrimination on the basis of race, color,
religion, national origin, or sex.'' 47 U.S.C. 151.
\74\ The term ``equity'' is used here consistent with Executive
Order 13985 as the consistent and systematic fair, just, and
impartial treatment of all individuals, including individuals who
belong to underserved communities that have been denied such
treatment, such as Black, Latino, and Indigenous and Native American
persons, Asian Americans and Pacific Islanders and other persons of
color; members of religious minorities; lesbian, gay, bisexual,
transgender, and queer (LGBTQ+) persons; persons with disabilities;
persons who live in rural areas; and persons otherwise adversely
affected by persistent poverty or inequality. See Exec. Order No.
13985, 86 FR 7009, Executive Order on Advancing Racial Equity and
Support for Underserved Communities Through the Federal Government
(January 20, 2021).
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IV. Procedural Matters
A. Final Regulatory Flexibility Analysis (FRFA)
51. As required by the Regulatory Flexibility Act of 1980
(RFA),\75\ as amended, an Initial Regulatory Flexibility Analysis
(IRFA) was incorporated in the Second Further Notice of Proposed
Rulemaking (FNPRM) and Third FNPRM in this proceeding. The Federal
Communications Commission (Commission) sought written public comment on
the proposals in the FNPRMs, including comment on the IRFAs. The
Commission received no comments in response to either IRFA. This
present Final Regulatory Flexibility Analysis (FRFA) conforms to the
RFA.\76\
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\75\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
\76\ See 5 U.S.C. 604.
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1. Need for, and Objectives of, the Third Report and Order
52. In the first Next Gen TV Report and Order, the Commission
authorized television broadcasters to use the Next Gen TV transmission
standard, also called ``ATSC 3.0'' or ``3.0,'' on a voluntary, market-
driven basis. ATSC 3.0 is the new TV transmission standard developed by
the Advanced Television Systems Committee as the world's first Internet
Protocol (IP)-based broadcast transmission platform. The Commission
determined in the Next Gen TV Report and Order that broadcasters that
deploy ATSC 3.0 generally must continue to deliver current-generation
digital television (DTV) service, using the ATSC 1.0 transmission
standard, also called ``ATSC 1.0'' or ``1.0,'' to their viewers through
local simulcasting. Specifically, the Commission required full power
and Class A TV stations deploying ATSC 3.0 service to simulcast the
primary video programming stream of their ATSC 3.0 channel in an ATSC
1.0 format.
53. The Commission determined in the Next Gen TV Report and Order
that the local simulcasting requirement is crucial to the deployment of
Next Gen TV service in order to minimize viewer disruption. The Next
Gen TV standard is not backward-compatible with existing TV sets or
receivers, which have only ATSC 1.0 and analog tuners. This means that
consumers will not be able to view ATSC 3.0 transmissions on their
existing televisions without additional equipment. Thus, it is critical
that Next Gen TV broadcasters continue to provide service using the
current ATSC 1.0 standard while the marketplace adopts devices
compatible with the new 3.0 transmission standard in order to avoid
either forcing viewers to acquire new equipment or depriving them of
television service. A TV station cannot, as a technical matter,
broadcast in both 1.0 and 3.0 format from the same facility. Therefore,
local simulcasting will be effectuated through voluntary partnerships
that broadcasters that wish to provide Next Gen TV service must enter
into with other broadcasters in their local markets. Next Gen TV
broadcasters must partner with another
[[Page 45361]]
television station (i.e., a temporary ``host'' station) in their local
market to either: (1) air an ATSC 3.0 channel at the temporary host's
facility, while using their original facility to continue to provide an
ATSC 1.0 simulcast channel, or (2) air an ATSC 1.0 simulcast channel at
the temporary host's facility, while converting their original facility
to the ATSC 3.0 standard in order to provide a 3.0 channel.
54. In this Third Report and Order, we adopt changes to our ATSC
3.0 (3.0 or Next Gen TV) rules considered in both the Second FNPRM (or
Multicast Licensing FNPRM) and Third FNPRM (or Sunsets FNPRM). In the
first part of this Order, the Commission generally adopts the rules
proposed in the Next Gen TV Multicast Licensing FNPRM, establishing a
licensing regime for Next Gen TV stations' multicast streams that are
aired on host stations during the transition period. These rules
facilitate and encourage Next Gen TV stations to preserve consumer
access to multicast programming in 1.0 format during the voluntary ATSC
3.0 transition. They will provide the industry with regulatory
certainty about the legal treatment of licensed multicast streams;
clarify that the originating station (and not the host station) is
responsible for regulatory compliance regarding a multicast stream
being aired on a host station; give the Commission clear enforcement
authority over the originating station in the event of a rule violation
on the hosted multicast programming stream; and facilitate NCE
stations' 3.0 deployment by allowing them to serve as hosts to
commercial stations' multicast streams. The Commission recognizes that
allowing Next Gen TV stations to seek modification of their license to
include capacity on multiple host stations represents a significant
departure from its present licensing regime. The Commission finds that
doing so is appropriate because it is limited to the temporary
broadcast transition to 3.0 and to specific situations for which there
is a clear need.
55. In the second part of this Order, the Commission retains the
substantially similar rule and requirement to comply with the ATSC A/
322 standard until July 17, 2027. The substantially similar rule
requires that the programming aired on a Next Gen TV station's ATSC 1.0
simulcast channel be ``substantially similar'' to that of the primary
video programming stream on the ATSC 3.0 channel.\77\ This means that
the programming must be the same, except for programming features that
are based on the enhanced capabilities of ATSC 3.0 and promotions for
upcoming programs.\78\ In this Order, the Commission finds that this
rule remains necessary to protect consumers by ensuring that over-the-
air (OTA) viewers who rely on 1.0 are able to continue watching the
same programming they watch today, as well as any new programming
offerings on a broadcaster's primary channel that can be reasonably
provided in 1.0 format. The Commission finds that there has not yet
been a sufficient shift in the marketplace that would justify
elimination or modification of the substantially similar rule. The
requirement to comply with the ATSC A/322 standard, which applies only
to Next Gen TV broadcasters' primary video programming stream, provides
certainty to consumers, television receiver manufacturers, and MVPDs
that 3.0 TV sets or other 3.0 TV equipment will be able to receive all
3.0 primary broadcast signals. In this Order, the Commission finds that
this rule remains necessary at this time to protect consumers and other
stakeholders.
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\77\ The substantially similar rule is independent of the
requirement for Next Gen TV broadcasters to simulcast in 1.0 format,
a requirement that does not have a sunset date.
\78\ Such enhanced content or features that cannot reasonably be
provided in ATSC 1.0 format include: targeted advertisements,
``hyper-localized'' content (e.g., geo-targeted weather, targeted
emergency alerts, and hyper-local news), programming features or
improvements created for the 3.0 service (e.g., emergency alert
``wake up'' ability and interactive programming features), enhanced
formats made possible by 3.0 technology (e.g., 4K or HDR), and any
personalization of programming performed by the viewer and at the
viewer's discretion.
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2. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
56. There were no comments filed that specifically addressed the
rules and policies proposed in the IRFA of either the Second or Third
FNPRM.
3. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
57. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments.\79\
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\79\ 5 U.S.C. 604(a)(3).
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58. The Chief Counsel did not file any comments in response to the
proposed rules in this proceeding.
4. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
59. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein.\80\ The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' \81\ In addition, the term ``small business'' has the
same meaning as the term ``small business concern'' under the Small
Business Act.\82\ A small business concern is one which: (1) is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA.\83\ Below, we provide a description of such small entities, as
well as an estimate of the number of such small entities, where
feasible.
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\80\ 5 U.S.C. 603(b)(3).
\81\ Id. 601(6).
\82\ Id. 601(3) (incorporating by reference the definition of
``small-business concern'' in 15 U.S.C. 632). Pursuant to 5 U.S.C.
601(3), the statutory definition of a small business applies
``unless an agency, after consultation with the Office of Advocacy
of the Small Business Administration and after opportunity for
public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\83\ 15 U.S.C. 632.
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60. Television Broadcasting. This industry is comprised of
``establishments primarily engaged in broadcasting images together with
sound.'' These establishments operate television broadcast studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in turn
broadcast the programs to the public on a predetermined schedule.
Programming may originate in their own studio, from an affiliated
network, or from external sources. The SBA small business size standard
for this industry classifies businesses having $41.5 million or less in
annual receipts as small. 2017 U.S. Census Bureau data indicate that
744 firms in this industry operated for the entire year. Of that
number, 657 firms had revenue of less than $25,000,000.\84\ Based on
this data we estimate that the majority of television broadcasters are
small entities
[[Page 45362]]
under the SBA small business size standard.
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\84\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard. We also note that according to the U.S. Census Bureau
glossary, the terms receipts and revenues are used interchangeably.
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61. As of December 31, 2022, there were 1,375 licensed commercial
television stations. Of this total, 1,282 stations (or 93.2%) had
revenues of $41.5 million or less in 2021, according to Commission
staff review of the BIAKelsey Media Access Pro Online Television
Database (MAPro) on January 13, 2023, and therefore these licensees
qualify as small entities under the SBA definition. In addition, the
Commission estimates as of December 31, 2022, there were 383 licensed
noncommercial educational (NCE) television stations, 383 Class A TV
stations, 1,912 LPTV stations and 3,122 TV translator stations. The
Commission, however, does not compile and otherwise does not have
access to financial information for these television broadcast stations
that would permit it to determine how many of these stations qualify as
small entities under the SBA small business size standard.
Nevertheless, given the SBA's large annual receipts threshold for this
industry and the nature of these television station licensees, we
presume that all of these entities qualify as small entities under the
above SBA small business size standard.
62. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired communications networks. Transmission
facilities may be based on a single technology or a combination of
technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a
variety of services, such as wired telephony services, including VoIP
services, wired (cable) audio and video programming distribution, and
wired broadband internet services. By exception, establishments
providing satellite television distribution services using facilities
and infrastructure that they operate are included in this industry.
Wired Telecommunications Carriers are also referred to as wireline
carriers or fixed local service providers.\85\
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\85\ Fixed Local Service Providers include the following types
of providers: Incumbent Local Exchange Carriers (ILECs), Competitive
Access Providers (CAPs) and Competitive Local Exchange Carriers
(CLECs), Cable/Coax CLECs, Interconnected VOIP Providers, Non-
Interconnected VOIP Providers, Shared-Tenant Service Providers,
Audio Bridge Service Providers, and Other Local Service Providers.
Local Resellers fall into another U.S. Census Bureau industry group
and therefore data for these providers is not included in this
industry.
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63. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.\86\
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 5,183 providers
that reported they were engaged in the provision of fixed local
services. Of these providers, the Commission estimates that 4,737
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
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\86\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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64. Cable Companies and Systems (Rate Regulation). The Commission
has developed its own small business size standard for the purpose of
cable rate regulation. Under the Commission's rules, a ``small cable
company'' is one serving 400,000 or fewer subscribers nationwide. Based
on industry data, there are about 420 cable companies in the U.S. Of
these, only seven have more than 400,000 subscribers. In addition,
under the Commission's rules, a ``small system'' is a cable system
serving 15,000 or fewer subscribers. Based on industry data, there are
about 4,139 cable systems (headends) in the U.S. Of these, about 639
have more than 15,000 subscribers. Accordingly, the Commission
estimates that the majority of cable companies and cable systems are
small.
65. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for a
``small cable operator,'' which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than one percent of
all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' For purposes of the Telecom Act Standard, the
Commission determined that a cable system operator that serves fewer
than 677,000 subscribers, either directly or through affiliates, will
meet the definition of a small cable operator based on the cable
subscriber count established in a 2001 Public Notice. Based on industry
data, only six cable system operators have more than 677,000
subscribers. Accordingly, the Commission estimates that the majority of
cable system operators are small under this size standard. We note
however, that the Commission neither requests nor collects information
on whether cable system operators are affiliated with entities whose
gross annual revenues exceed $250 million.\87\ Therefore, we are unable
at this time to estimate with greater precision the number of cable
system operators that would qualify as small cable operators under the
definition in the Communications Act.
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\87\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's
finding that the operator does not qualify as a small cable
operator.
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66. Direct Broadcast Satellite (``DBS'') Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic ``dish'' antenna
at the subscriber's location. DBS is included in the Wired
Telecommunications Carriers industry which comprises establishments
primarily engaged in operating and/or providing access to transmission
facilities and infrastructure that they own and/or lease for the
transmission of voice, data, text, sound, and video using wired
telecommunications networks. Transmission facilities may be based on a
single technology or combination of technologies. Establishments in
this industry use the wired telecommunications network facilities that
they operate to provide a variety of services, such as wired telephony
services, including VoIP services, wired (cable) audio and video
programming distribution; and wired broadband internet services.\88\ By
exception, establishments providing satellite television distribution
services using facilities and infrastructure that they operate are
included in this industry.
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\88\ Included in this industry are: broadband internet service
providers (e.g., cable, DSL); local telephone carriers (wired);
cable television distribution services; long-distance telephone
carriers (wired); closed-circuit television (CCTV) services; VoIP
service providers, using own operated wired telecommunications
infrastructure; direct-to-home satellite system (DTH) services;
telecommunications carriers (wired); satellite television
distribution systems; and multichannel multipoint distribution
services (MMDS).
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67. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that 3,054
firms operated in this industry for the entire year. Of this number,
2,964 firms operated with fewer than 250
[[Page 45363]]
employees.\89\ Based on this data, the majority of firms in this
industry can be considered small under the SBA small business size
standard. According to Commission data however, only two entities
provide DBS service--DIRECTV (owned by AT&T) and DISH Network, which
require a great deal of capital for operation. DIRECTV and DISH Network
both exceed the SBA size standard for classification as a small
business. Therefore, we must conclude based on internally developed
Commission data, in general DBS service is provided only by large
firms.
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\89\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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68. Satellite Master Antenna Television (SMATV) Systems, also known
as Private Cable Operators (PCOs). SMATV systems or PCOs are video
distribution facilities that use closed transmission paths without
using any public right-of-way. They acquire video programming and
distribute it via terrestrial wiring in urban and suburban multiple
dwelling units such as apartments and condominiums, and commercial
multiple tenant units such as hotels and office buildings. SMATV
systems or PCOs are included in the Wired Telecommunications Carriers'
industry which includes wireline telecommunications businesses. The SBA
small business size standard for Wired Telecommunications Carriers
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms in this industry
that operated for the entire year. Of this total, 2,964 firms operated
with fewer than 250 employees.\90\ Thus under the SBA size standard,
the majority of firms in this industry can be considered small.
---------------------------------------------------------------------------
\90\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
---------------------------------------------------------------------------
69. Home Satellite Dish (HSD) Service. HSD or the large dish
segment of the satellite industry is the original satellite-to-home
service offered to consumers and involves the home reception of signals
transmitted by satellites operating generally in the C-band frequency.
Unlike DBS, which uses small dishes, HSD antennas are between four and
eight feet in diameter and can receive a wide range of unscrambled
(free) programming and scrambled programming purchased from program
packagers that are licensed to facilitate subscribers' receipt of video
programming. Because HSD provides subscription services, HSD falls
within the industry category of Wired Telecommunications Carriers. The
SBA small business size standard for Wired Telecommunications Carriers
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms that operated for
the entire year. Of this total, 2,964 firms operated with fewer than
250 employees.\91\ Thus, under the SBA size standard, the majority of
firms in this industry can be considered small.
---------------------------------------------------------------------------
\91\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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70. Open Video Systems. The open video system (OVS) framework was
established in 1996 and is one of four statutorily recognized options
for the provision of video programming services by local exchange
carriers. The OVS framework provides opportunities for the distribution
of video programming other than through cable systems. OVS operators
provide subscription services and therefore fall within the SBA small
business size standard for the cable services industry, which is
``Wired Telecommunications Carriers.'' The SBA small business size
standard for this industry classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms in this industry that operated for the entire year. Of
this total, 2,964 firms operated with fewer than 250 employees.\92\
Thus, under the SBA size standard the majority of firms in this
industry can be considered small. Additionally, we note that the
Commission has certified some OVS operators who are now providing
service and broadband service providers (BSPs) are currently the only
significant holders of OVS certifications or local OVS franchises. The
Commission does not have financial or employment information for the
entities authorized to provide OVS however, the Commission believes
some of the OVS operators may qualify as small entities.
---------------------------------------------------------------------------
\92\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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71. Broadband Radio Service and Educational Broadband Service.
Broadband Radio Service systems, previously referred to as Multipoint
Distribution Service (MDS) and Multichannel Multipoint Distribution
Service (MMDS) systems, and ``wireless cable,'' \93\ transmit video
programming to subscribers and provide two-way high speed data
operations using the microwave frequencies of the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS) (previously
referred to as the Instructional Television Fixed Service (ITFS)).
Wireless cable operators that use spectrum in the BRS often
supplemented with leased channels from the EBS, provide a competitive
alternative to wired cable and other multichannel video programming
distributors. Wireless cable programming to subscribers resembles cable
television, but instead of coaxial cable, wireless cable uses microwave
channels.\94\
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\93\ The use of the term ``wireless cable'' does not imply that
it constitutes cable television for statutory or regulatory
purposes.
\94\ Generally, a wireless cable system may be described as a
microwave station transmitting on a combination of BRS and EBS
channels to numerous receivers with antennas, such as single-family
residences, apartment complexes, hotels, educational institutions,
business entities and governmental offices. The range of the
transmission depends upon the transmitter power, the type of
receiving antenna and the existence of a line-of-sight path between
the transmitter or signal booster and the receiving antenna.
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72. In light of the use of wireless frequencies by BRS and EBS
services, the closest industry with a SBA small business size standard
applicable to these services is Wireless Telecommunications Carriers
(except Satellite). The SBA small business size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees.\95\ Thus under
the SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
---------------------------------------------------------------------------
\95\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
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73. According to Commission data as December 2021, there were
approximately 5,869 active BRS and EBS licenses. The Commission's small
business size standards with respect to BRS involves eligibility for
bidding credits and installment payments in the auction of licenses for
these services. For the auction of BRS licenses, the Commission adopted
criteria for three groups of small businesses. A very small business is
an entity that, together with its affiliates and controlling interests,
has average annual gross revenues exceed $3 million and did not exceed
$15 million for the preceding three years, a small business is an
entity that, together with its affiliates and controlling interests,
has average gross revenues exceed $15 million and did not exceed $40
million for the preceding three years, and an entrepreneur is an entity
that, together with its affiliates and controlling interests, has
average gross revenues not exceeding $3 million
[[Page 45364]]
for the preceding three years. Of the ten winning bidders for BRS
licenses, two bidders claiming the small business status won 4
licenses, one bidder claiming the very small business status won three
licenses and two bidders claiming entrepreneur status won six licenses.
One of the winning bidders claiming a small business status
classification in the BRS license auction has an active licenses as of
December 2021.
74. The Commission's small business size standards for EBS define a
small business as an entity that, together with its affiliates, its
controlling interests and the affiliates of its controlling interests,
has average gross revenues that are not more than $55 million for the
preceding five (5) years, and a very small business is an entity that,
together with its affiliates, its controlling interests and the
affiliates of its controlling interests, has average gross revenues
that are not more than $20 million for the preceding five (5) years. In
frequency bands where licenses were subject to auction, the Commission
notes that as a general matter, the number of winning bidders that
qualify as small businesses at the close of an auction does not
necessarily represent the number of small businesses currently in
service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
75. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA have developed a small business size standard
specifically for incumbent local exchange carriers. Wired
Telecommunications Carriers is the closest industry with an SBA small
business size standard. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms in this industry that operated for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.\96\
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 1,227 providers
that reported they were incumbent local exchange service providers. Of
these providers, the Commission estimates that 929 providers have 1,500
or fewer employees. Consequently, using the SBA's small business size
standard, the Commission estimates that the majority of incumbent local
exchange carriers can be considered small entities.
---------------------------------------------------------------------------
\96\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
---------------------------------------------------------------------------
76. Competitive Local Exchange Carriers (LECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to local exchange services.
Providers of these services include several types of competitive local
exchange service providers.\97\ Wired Telecommunications Carriers is
the closest industry with a SBA small business size standard. The SBA
small business size standard for Wired Telecommunications Carriers
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms that operated in
this industry for the entire year. Of this number, 2,964 firms operated
with fewer than 250 employees.\98\ Additionally, based on Commission
data in the 2021 Universal Service Monitoring Report, as of December
31, 2020, there were 3,956 providers that reported they were
competitive local exchange service providers. Of these providers, the
Commission estimates that 3,808 providers have 1,500 or fewer
employees. Consequently, using the SBA's small business size standard,
most of these providers can be considered small entities.
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\97\ Competitive Local Exchange Service Providers include the
following types of providers: Competitive Access Providers (CAPs)
and Competitive Local Exchange Carriers (CLECs), Cable/Coax CLECs,
Interconnected VOIP Providers, Non-Interconnected VOIP Providers,
Shared-Tenant Service Providers, Audio Bridge Service Providers,
Local Resellers, and Other Local Service Providers.
\98\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
---------------------------------------------------------------------------
77. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. This industry comprises establishments
primarily engaged in manufacturing radio and television broadcast and
wireless communications equipment. Examples of products made by these
establishments are: transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment. The SBA small business size standard for this
industry classifies businesses having 1,250 employees or less as small.
U.S. Census Bureau data for 2017 show that there were 656 firms in this
industry that operated for the entire year. Of this number, 624 firms
had fewer than 250 employees.\99\ Thus, under the SBA size standard,
the majority of firms in this industry can be considered small.
---------------------------------------------------------------------------
\99\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard.
---------------------------------------------------------------------------
78. Audio and Video Equipment Manufacturing. This industry
comprises establishments primarily engaged in electronic audio and
video equipment for home entertainment, motor vehicles, and public
address and musical instrument amplification. Examples of products made
by these establishments are video cassette recorders, televisions,
stereo equipment, speaker systems, household-type video cameras,
jukeboxes, and amplifiers for musical instruments and public address
systems. The SBA small business size standard for this industry
classifies firms with 750 employees or less as small. According to 2017
U.S. Census Bureau data, 464 firms in this industry operated that year.
Of this number, 399 firms operated with less than 250 employees.\100\
Based on this data and the associated SBA size standard, we conclude
that the majority of firms in this industry are small.
---------------------------------------------------------------------------
\100\ The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard. We also note that the U.S. Census Bureau withheld
publication of the number of firms that operated for the entire year
and the number of firms that operated with 5 to 9 employees, to
avoid disclosing data for individual companies (see Cell Notes for
``Firms operated for the entire year'' and ``Firms operated for the
entire year with 5 to 9 employees''). Therefore, the number of firms
with employees that meet the SBA size standard would be higher that
noted herein.
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5. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
79. The Order modifies our Next Gen TV licensing processes to
include additional reporting, recordkeeping, and other compliance for
small entities that seek to include hosted multicast streams within
their license. While the Commission is not in a position to determine
whether small entities will have to hire professionals to comply with
our decisions and cannot quantify the cost of compliance for small
entities, as discussed in the Order, the approaches we have taken to
implement the requirements for Next Gen TV multicasting have minimal
cost implications for impacted entities.
80. As discussed in section A of this FRFA, this Order establishes
a licensing
[[Page 45365]]
regime for Next Gen TV stations' multicast streams that are aired on
host stations (as guest streams) during the transition period. The
Order applies the licensing process for primary simulcast streams to
guest multicast streams. Thus, Next Gen TV broadcasters that choose to
deploy ATSC 3.0 service and seek to license guest multicast streams
aired on a host station are subject to certain reporting,
recordkeeping, or other compliance requirements.
81. A Next Gen TV broadcaster seeking to license one or more guest
multicast streams aired on a host station (multicast license applicant)
is subject to the host capacity limit (discussed in section III.D. of
this Order). That is, a Next Gen TV station may not use more 1.0 host
capacity than it could have used if it were still broadcasting in 1.0
on its own facilities. A multicast license applicant is also subject to
most requirements applicable to primary streams, including rules
concerning signal coverage, simulcast agreements, MVPD notice and on-
air consumer notice requirements for each guest multicast stream
(discussed in section III.H. of this Order).
82. All multicast license applicants, including small entities,
must file an application (Form 2100) to modify its license with the
Commission and receive prior Commission approval. This requires the
applicant must prepare an exhibit identifying each guest stream and
provide the following information about each stream, as broadcast: the
host station; channel number (RF and virtual); network affiliation (or
type of programming if unaffiliated); resolution (e.g., 1080i, 720p,
480p, or 480i); the predicted percentage of population within the noise
limited service contour served by the station's original ATSC 1.0
signal that will be served by the host, with a contour overlay map
identifying areas of service loss and, in the case of 1.0 streams,
coverage of the originating station's community of license; and whether
the stream will be simulcast, and if so, the ``paired'' stream in the
other service. Finally, the exhibit must either state that the
applicant will be airing the same programming that it is airing in 1.0
at the time of the application or identify the station that has aired
or is airing the same or a similar programming lineup at the same
resolutions on the same type of facility (individual or shared), as
well as that station's lineup (with resolutions). This exhibit must be
placed on the applicant's public website, with a link provided in the
application.
83. The Order also retains for another four years two existing
compliance requirements for all stations, including small entities, and
eliminates the sunset dates for these requirements. The Order retains
the ``substantially similar'' rule (see section III.I. of this Order).
This rule requires that the programming aired on a Next Gen TV
station's ATSC 1.0 simulcast channel be ``substantially similar'' to
that of the primary video programming stream on the ATSC 3.0 channel.
This means that the programming must be the same, except for
programming features that are based on the enhanced capabilities of
ATSC 3.0, including targeted advertisements, and promotions for
upcoming programs. This rule will now expire in 2027absent Commission
action. The Order retains the requirement to comply with the ATSC A/322
standard (``Physical Layer Protocol'') (A/322) (see section III.J of
this Order), which is the standard that defines the waveforms that ATSC
3.0 signals may take. The requirement to comply with A/322 will now
expire in 2027 absent Commission action.
6. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
84. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its approach, which may
include the following four alternatives (among others): ``(1) the
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities; (3) the use of performance rather than design standards; and
(4) an exemption from coverage of the rule, or any part thereof, for
small entities.'' \101\
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\101\ 5 U.S.C. 603(c)(1)-(c)(4).
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85. The Commission has authorized television broadcasters to use
the Next Gen TV (ATSC 3.0) standard on a voluntary, market-driven
basis. As observed in the Final Regulatory Flexibility Analysis of the
2017 First Next Gen TV Report and Order, this means that broadcasters
decide whether (and if so when) to deploy ATSC 3.0 service and bear the
costs associated with such deployment. All broadcasters, including
small entities, will need to undertake any costs or burdens associated
with ATSC 3.0 service should they choose to do so.
86. The rules concerning multicast licensing provide increased
flexibility to broadcasters without imposing additional obligations. By
expanding the ability of broadcasters to place licensed streams on
additional host partners, the rules may allow small broadcast entities
transitioning to ATSC 3.0 to experience positive economic impacts
through partnerships with unaffiliated third parties. NCE television
stations in particular, both large and small, will experience positive
benefits from the rules, which could improve their ability to
participate in the transition to Next Gen TV. Although we intended to
limit certain simulcast multicast stream relief only to NCE stations or
commercial stations airing multicast streams on NCE partner hosts, we
will instead allow any Next Gen TV station to apply for this relief
under the non-expedited process, but emphasize that all applicants,
including small entities, must demonstrate why this relief is in the
public interest and outweighs any potential harms. In addition, the
multicast licensing approach minimizes administrative burdens for all
broadcasters, including small broadcasters. The rules streamline the
current process whereby broadcasters request special temporary
authority on a case-by-case basis. We also considered concerns
regarding the potential abuse of these rules in that the multicast
streams may allow stations to evade local ownership rules. Consistent
with our previous decisions, hosting multicast streams on a temporary
host station's facility will not result in any additional requirements
for small entities related to television stations attribution (e.g.,
filing ownership reports). In finding that it is appropriate to limit a
Next Gen TV station's 1.0 host capacity to that which it could deploy
on its own 1.0 channel, we determined that other alternatives related
to proposed capacity limits would be overly restrictive to all
stations, including small entities, and that the best metric will be
the number and resolution of streams actually airing (or that
previously actually aired) on specific 1.0 facilities. In retaining the
rules that require stations, including small entities, to broadcast
substantially similar programing to their primary streams, we rejected
the alternatives presented by broadcasters that argued that market
incentives would ensure OTA viewers have access to this programming.
7. Report to Congress
87. The Commission will send a copy of the Third Report and Order,
including this FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act.\102\ In
[[Page 45366]]
addition, the Commission will send a copy of the Third Report and
Order, including this FRFA, to the Chief Counsel for Advocacy of the
SBA. The Order and FRFA (or summaries thereof) will also be published
in the Federal Register.\103\
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\102\ See 5 U.S.C. 801(a)(1)(A).
\103\ See id. 604(b).
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B. Final PRA Analysis
88. This document contains new information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA).\104\ The
requirements will be submitted to the Office of Management and Budget
(OMB) for review under Section 3507(d) of the PRA. OMB, the general
public, and other Federal agencies will be invited to comment on the
information collection requirements contained in this proceeding. The
Commission will publish a separate document in the Federal Register at
a later date seeking these comments. In addition, we note that pursuant
to the Small Business Paperwork Relief Act of 2002 (SBPRA),\105\ we
will seek specific comment on how the Commission might further reduce
the information collection burden for small business concerns with
fewer than 25 employees.
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\104\ The Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13, 109 Stat. 163 (1995) (codified in Chapter 35 of title 44
U.S.C.).
\105\ The Small Business Paperwork Relief Act of 2002 (SBPRA),
Public Law 107-198, 116 Stat. 729 (2002) (codified in Chapter 35 of
title 44 U.S.C.). See 44 U.S.C. 3506(c)(4).
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C. Congressional Review Act
89. The Bureau has determined, and the Administrator of the Office
of Information and Regulatory Affairs, Office of Management and Budget,
concurs that these rules are non-major under the Congressional Review
Act, 5 U.S.C. 804(2). The Commission will send a copy of this Third
Report and Order to Congress and the Government Accountability office,
pursuant to 5 U.S.C. 801(a)(1)(A).
V. Ordering Clauses
90. It is ordered, pursuant to the authority found in sections 1,
4, 7, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338, 399b, 403,
534, and 535 of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154, 157, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338,
399b, 403, 534, and 535, this Third Report and Order is hereby adopted,
effective thirty (30) days after the date of publication in the Federal
Register.
91. It is further ordered that the Commission's rules are hereby
amended as set forth in Appendix B of the Third Report and Order and
will become effective 30 days after publication in the Federal
Register, except for 47 CFR 73.3801, 73.6029, and 74.782 which contain
new or modified information collection requirements that require
approval by the OMB under the PRA and which shall become effective
after the Commission publishes a notice in the Federal Register
announcing OMB approval and the effective date of the rules.
92. It is further ordered that, pursuant to 47 U.S.C. 155(c), the
Chief, Media Bureau, is granted delegated authority for the purpose of
amending FCC Form 2100 as necessary to implement the licensing process
adopted herein.
93. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Third Report and Order, including the Initial and Final
Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of
the Small Business Administration.
94. It is further ordered, that pursuant to section 801(a)(1)(A) of
the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission
shall send a copy of this Third Report and Order to Congress and to the
Government Accountability Office.
List of Subjects in 47 CFR Parts 73 and 74
Communications equipment, Television.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 73 and 74 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
Sec. 73.682 [Amended]
0
2. Amend Sec. 73.682 by:
0
a. Lifting the stay on paragraph (f)(2)(iii) published on April 5, 2023
(88 FR 20076).
0
b. In paragraph (f)(2)(iii), removing the date ``March 6, 2023'' and
adding, in its place, ``July 17, 2027''.
0
c. Removing Note 2 to Sec. 73.682.
0
3. Amend Sec. 73.3801 by:
0
a. In paragraph (b)(3), by removing the date ``July 17, 2023'' and
adding in its place ``July 17, 2027'';
0
b. Revising paragraphs (f)(5) and (6); and
0
c. Adding paragraph (i).
The revisions and addition read as follows:
Sec. 73.3801 Full power television simulcasting during the ATSC 3.0
(Next Gen TV) transition.
* * * * *
(f) * * *
(5) Expedited processing. An application filed in accordance with
the streamlined process in paragraph (f)(3) of this section will
receive expedited processing provided, for stations requesting to air
an ATSC 1.0 primary signal on the facilities of a host station, that
station will provide ATSC 1.0 service to at least 95 percent of the
predicted population within the noise limited service contour of its
original ATSC 1.0 facility.
(6) Required information. (i) An application in paragraph (f)(2) of
this section must include the following information:
(A) The station or stations serving as the host or hosts,
identified by call sign and facility identification number, if
applicable;
(B) The technical facilities of each host station, if applicable;
(C) The DMA of the originating broadcaster's facility and the DMA
of each host station, if applicable;
(D) A web link to the exhibit described in paragraph (i) of this
section, if applicable; and
(E) Any other information deemed necessary by the Commission to
process the application.
(ii) If an application in paragraph (f)(2) of this section includes
a request to air an ATSC 1.0 signal on the facilities of a host station
or stations, the broadcaster must, in addition to the information in
paragraph (f)(6)(i) of this section, also indicate on the application:
(A) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal;
(B) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal that will lose
the station's ATSC 1.0 service as a result of the hosting arrangement
or arrangements, including identifying areas of service loss by
providing a contour overlap map; and
(C) Whether the ATSC 1.0 primary stream simulcast signal aired on
the host station will serve at least 95 percent of the population in
paragraph (f)(6)(ii)(A) of this section.
* * * * *
[[Page 45367]]
(i) Multicast streams. A Next Gen TV station is not required to
license, under paragraph (f) of this section, a ``guest'' multicast
programming stream that it originates and which is aired on a host
station. If it chooses to do so, it and each of its licensed guest
multicast streams must comply with the requirements of this section
(including those otherwise applicable only to primary streams), except
for paragraph (f)(5) of this section and as otherwise provided in this
paragraph. For purposes of this section, a ``multicast'' stream refers
to a video programming stream other than the primary video programming
stream.
(1) 1.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 1.0 multicast stream(s) aired on one or more ATSC 1.0 hosts
pursuant to paragraph (f) of this section. Non-simulcast streams are
not required to comply with paragraph (b) of this section.
(i) Host capacity limit. A Next Gen TV station that has converted
its own facility to 3.0 must not license more capacity on one or more
partner host stations, in the aggregate, than the station could use if
it were still operating on its own facility in 1.0. It must demonstrate
compliance with this limit in its license application exhibit.
(ii) [Reserved]
(2) 3.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 3.0 multicast stream(s) aired on one or more ATSC 3.0 hosts
pursuant to paragraph (f) of this section.
(3) Children's television. A Next Gen TV station may rely on a
multicast stream it is airing via a host partner to comply with the
Commission's children's television programming requirement in Sec.
73.671. Such a stream must either be carried on the same host as the
Next Gen TV station's primary stream, or on a host that serves at least
95 percent of the predicted population served by the Next Gen TV
station's pre-transition 1.0 signal.
(4) Application exhibit required. A Next Gen TV station seeking to
license hosted multicast streams must prepare and host on its public
website (or its Online Public Inspection File if the station does not
have a dedicated website) the exhibit referenced in paragraph
(f)(6)(i)(D) of this section. The exhibit must contain the following:
(i) For each hosted stream: channel number (RF and virtual);
network affiliation (or type of programming if unaffiliated);
resolution (e.g., 1080i, 720p, 480p, or 480i); whether the stream will
be simulcast; and if so, the identity of the paired stream in the other
service; and
(ii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the host capacity limit.
It may do so by either showing that it is seeking hosting only for
streams it was broadcasting on its own 1.0 facility prior to its
transition to 3.0, or identifying another 1.0 station that is carrying
or has carried the same or a similar programming lineup at the same
resolutions on the same type of facility (individual or shared);
(iii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the coverage requirement
for guest multicast streams, including by providing a contour map
showing the guest multicast stream will continue to serve the station's
community of license; and
(iv) Changes to the exhibit. Changes to the affiliation or content
of a stream that would not result in the use of additional capacity,
the elimination of a stream, or non-substantive corrections may be made
at the discretion of the applicant but must be reflected in a timely
update to the existing public exhibit and an emailed notice to the
Chief of the Media Bureau's Video Division or their designee. No other
changes, including to the location of the exhibit itself, may be made
without the filing and approval of a new application.
0
4. Amend Sec. 73.6029 by:
0
a. In paragraph (b)(3), remove the date ``July 17, 2023'' and add, in
its place, ``July 17, 2027'';
0
b. Revising paragraphs (f)(5) and (6); and
0
c. Adding paragraph (i).
The revisions and addition read as follows:
Sec. 73.6029 Class A television simulcasting during the ATSC 3.0
(Next Gen TV) transition.
* * * * *
(f) * * *
(5) Expedited processing. An application filed in accordance with
the streamlined process in paragraph (f)(3) of this section will
receive expedited processing provided, for stations requesting to air
an ATSC 1.0 primary signal on the facilities of a host station, that
station will provide ATSC 1.0 service to at least 95 percent of the
predicted population within the noise limited service contour of its
original ATSC 1.0 facility.
(6) Required information. (i) An application in paragraph (f)(2) of
this section must include the following information:
(A) The station or stations serving as the host or hosts,
identified by call sign and facility identification number, if
applicable;
(B) The technical facilities of each host station, if applicable;
(C) The DMA of the originating broadcaster's facility and the DMA
of each host station, if applicable;
(D) A web link to the exhibit described in paragraph (i) of this
section, if applicable; and
(E) Any other information deemed necessary by the Commission to
process the application.
(ii) If an application in paragraph (f)(2) of this section includes
a request to air an ATSC 1.0 signal on the facilities of a host station
or stations, the broadcaster must, in addition to the information in
paragraph (f)(6)(i) of this section, also indicate on the application:
(A) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal;
(B) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal that will lose
the station's ATSC 1.0 service as a result of the hosting arrangement
or arrangements, including identifying areas of service loss by
providing a contour overlap map; and
(C) Whether the ATSC 1.0 primary stream simulcast signal aired on
the host station will serve at least 95 percent of the population in
paragraph (f)(6)(ii)(A) of this section.
* * * * *
(i) Multicast streams. A Next Gen TV station is not required to
license, under paragraph (f) of this section, a ``guest'' multicast
programming stream that it originates and which is aired on a host
station. If it chooses to do so, it and each of its licensed guest
multicast streams must comply with the requirements of this section
(including those otherwise applicable only to primary streams), except
for paragraph (f)(5) of this section and as otherwise provided in this
paragraph. For purposes of this section, a ``multicast'' stream refers
to a video programming stream other than the primary video programming
stream.
(1) 1.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 1.0 multicast stream(s) aired on one or more ATSC 1.0 hosts
pursuant to paragraph (f) of this section. Non-simulcast streams are
not required to comply with paragraph (b) of this section.
(i) Host capacity limit. A Next Gen TV station that has converted
its own facility to 3.0 must not license more capacity on one or more
partner host stations, in the aggregate, than the station could use if
it were still operating on its own facility in 1.0. It must demonstrate
compliance with this limit in its license application exhibit.
[[Page 45368]]
(2) 3.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 3.0 multicast stream(s) aired on one or more ATSC 3.0 hosts
pursuant to paragraph (f) of this section.
(3) Children's television. A Next Gen TV station may rely on a
multicast stream it is airing via a host partner to comply with the
Commission's children's television programming requirement in Sec.
73.671. Such a stream must either be carried on the same host as the
Next Gen TV station's primary stream, or on a host that serves at least
95 percent of the predicted population served by the Next Gen TV
station's pre-transition 1.0 signal.
(4) Application exhibit required. A Next Gen TV station seeking to
license hosted multicast streams must prepare and host on its public
website (or its Online Public Inspection File if the station does not
have a dedicated website) the exhibit referenced in paragraph
(f)(6)(i)(D) of this section. The exhibit must contain the following:
(i) For each hosted stream: channel number (RF and virtual);
network affiliation (or type of programming if unaffiliated);
resolution (e.g., 1080i, 720p, 480p, or 480i); whether the stream will
be simulcast; and if so, the identity of the paired stream in the other
service; and
(ii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the host capacity limit.
It may do so by either showing that it is seeking hosting only for
streams it was broadcasting on its own 1.0 facility prior to its
transition to 3.0, or identifying another 1.0 station that is carrying
or has carried the same or a similar programming lineup at the same
resolutions on the same type of facility (individual or shared);
(iii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the coverage requirement
for guest multicast streams, including by providing a contour map
showing the guest multicast stream will continue to serve the station's
community of license; and
(iv) Changes to the exhibit. Changes to the affiliation or content
of a stream that would not result in the use of additional capacity,
the elimination of a stream, or non-substantive corrections may be made
at the discretion of the applicant but must be reflected in a timely
update to the existing public exhibit and an emailed notice to the
Chief of the Media Bureau's Video Division or their designee. No other
changes, including to the location of the exhibit itself, may be made
without the filing and approval of a new application.
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTIONAL SERVICES
0
5. The authority citation for part 74 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, 307, 309, 310, 325, 336 and
554.
0
6. Amend Sec. 74.782 by:
0
a. In paragraph (b)(3) remove the date ``July 17, 2023'' and add, in
its place, ``July 17, 2027'';
0
b. Revising paragraphs (g)(5) and (6); and
0
c. Adding paragraph (j).
The revisions and addition read as follows:
Sec. 74.782 Low power television and TV translator simulcasting
during the ATSC 3.0 (Next Gen TV) transition.
* * * * *
(g) * * *
(5) Expedited processing. An application filed in accordance with
the streamlined process in paragraph (f)(3) of this section will
receive expedited processing provided, for stations requesting to air
an ATSC 1.0 primary signal on the facilities of a host station, that
station will provide ATSC 1.0 service to at least 95 percent of the
predicted population within the noise limited service contour of its
original ATSC 1.0 facility.
(6) Required information. (i) An application in paragraph (f)(2) of
this section must include the following information:
(A) The station or stations serving as the host or hosts,
identified by call sign and facility identification number, if
applicable;
(B) The technical facilities of each host station, if applicable;
(C) The DMA of the originating broadcaster's facility and the DMA
of each host station, if applicable;
(D) A web link to the exhibit described in paragraph (i) of this
section, if applicable; and
(E) Any other information deemed necessary by the Commission to
process the application.
(ii) If an application in paragraph (f)(2) of this section includes
a request to air an ATSC 1.0 signal on the facilities of a host station
or stations, the broadcaster must, in addition to the information in
paragraph (f)(6)(i) of this section, also indicate on the application:
(A) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal;
(B) The predicted population within the noise limited service
contour served by the station's original ATSC 1.0 signal that will lose
the station's ATSC 1.0 service as a result of the hosting arrangement
or arrangements, including identifying areas of service loss by
providing a contour overlap map; and
(C) Whether the ATSC 1.0 primary stream simulcast signal aired on
the host station will serve at least 95 percent of the population in
paragraph (f)(6)(ii)(A) of this section.
* * * * *
(j) Multicast streams. A Next Gen TV station is not required to
license, under paragraph (f) of this section, a ``guest'' multicast
programming stream that it originates and which is aired on a host
station. If it chooses to do so, it and each of its licensed guest
multicast streams must comply with the requirements of this section
(including those otherwise applicable only to primary streams), except
for paragraph (f)(5) of this section and as otherwise provided in this
paragraph. For purposes of this section, a ``multicast'' stream refers
to a video programming stream other than the primary video programming
stream.
(1) 1.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 1.0 multicast stream(s) aired on one or more ATSC 1.0 hosts
pursuant to paragraph (f) of this section. Non-simulcast streams are
not required to comply with paragraph (b) of this section.
(i) Host capacity limit. A Next Gen TV station that has converted
its own facility to 3.0 must not license more capacity on one or more
partner host stations, in the aggregate, than the station could use if
it were still operating on its own facility in 1.0. It must demonstrate
compliance with this limit in its license application exhibit.
(2) 3.0 Multicast streams. A Next Gen TV station may license its
guest ATSC 3.0 multicast stream(s) aired on one or more ATSC 3.0 hosts
pursuant to paragraph (f) of this section.
(3) Children's television. A Next Gen TV station may rely on a
multicast stream it is airing via a host partner to comply with the
Commission's children's television programming requirement in Sec.
73.671 of thischapter. Such a stream must either be carried on the same
host as the Next Gen TV station's primary stream, or on a host that
serves at least 95 percent of the predicted population served by the
Next Gen TV station's pre-transition 1.0 signal.
(4) Application exhibit required. A Next Gen TV station seeking to
license hosted multicast streams must prepare and host on its public
website (or its Online Public Inspection File if the station does not
have a dedicated
[[Page 45369]]
website) the exhibit referenced in paragraph (f)(6)(i)(D) of this
section. The exhibit must contain the following:
(i) For each hosted stream: channel number (RF and virtual);
network affiliation (or type of programming if unaffiliated);
resolution (e.g., 1080i, 720p, 480p, or 480i); whether the stream will
be simulcast; and if so, the identity of the paired stream in the other
service; and
(ii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the host capacity limit.
It may do so by either showing that it is seeking hosting only for
streams it was broadcasting on its own 1.0 facility prior to its
transition to 3.0, or identifying another 1.0 station that is carrying
or has carried the same or a similar programming lineup at the same
resolutions on the same type of facility (individual or shared);
(iii) For a station that has converted its own facility to 3.0, the
exhibit must also demonstrate compliance with the coverage requirement
for guest multicast streams, including by providing a contour map
showing the guest multicast stream will continue to serve the station's
community of license; and
(iv) Changes to the exhibit. Changes to the affiliation or content
of a stream that would not result in the use of additional capacity,
the elimination of a stream, or non-substantive corrections may be made
at the discretion of the applicant but must be reflected in a timely
update to the existing public exhibit and an emailed notice to the
Chief of the Media Bureau's Video Division or their designee. No other
changes, including to the location of the exhibit itself, may be made
without the filing and approval of a new application.
[FR Doc. 2023-14408 Filed 7-14-23; 8:45 am]
BILLING CODE 6712-01-P
