The Federal Communications Commission (FCC)'s notice concerning ATSC 3.0, issued on October 7, stands out more for the issues it avoids addressing than for its proposed solutions. The document underscores a core issue: the commission seems unsure how to regulate spectrum usage intended for public access. By removing mandatory simulcasting requirements and allowing broadcasters to decide on transition timelines, the FCC essentially transfers authority over public spectrum from a regulatory body to private license holders. This strategy significantly contrasts with earlier broadcast transitions, during which the commission set specific deadlines and technical guidelines, aiming for a well-defined outcome.
The document states, "We propose to permit stations to continue to voluntarily transition from a 1.0 signal to a 3.0 signal while giving them greater freedom to serve the specific needs of their local markets." This statement assumes that business decisions made by individual broadcasters will naturally align with the public interest. However, the very existence of the proceeding suggests otherwise. Take, for instance, the issue of encryption. The ATSC 3.0 Security Authority (A3SA) - a private entity established by ABC, CBS, Fox, NBCUniversal, and Univision - manages digital rights management systems that currently prevent certain NextGen TV devices from showing encrypted broadcasts. The commission acknowledges that it has received "thousands of consumer comments" expressing concerns that previously bought equipment may no longer work to receive free, over-the-air television. This raises a critical question: do encrypted broadcasts that require proprietary decryption qualify as "broadcasting" under the Communications Act's requirement that transmissions be "intended to be received by the public?"
The notice further states, "We seek comment on whether the current 3.0 encryption regime, as administered by A3SA and implemented by broadcasters, constitutes ‘broadcasting’ within the meaning of the Communications Act." If encrypted transmissions, needing certification from a private group, do not meet the statutory definition, stations using such encryption might not be operating in accordance with their licenses. According to Public Knowledge, a policy think tank focused on freedom, "This private entity, controlled by incumbent broadcasters, would control what devices can use the public airwaves. Startups, open-source projects and academic developers lack the resources to navigate the A3SA certification process, and many will simply be locked out of the ATSC 3.0 ecosystem." The FCC's method – seeking comments instead of establishing standards – permits the existing system to continue, even while acknowledging its potential conflict with legal requirements. This pattern repeats itself, with the commission identifying key policy issues but postponing their resolution to future proceedings.
The question of spectrum allocation follows the same pattern. Current regulations require stations to "transmit at least one free over-the-air video signal at no direct charge to viewers," but ATSC 3.0's improved capacity allows broadcasters to allocate significant bandwidth to datacasting and other non-broadcast services. The American Television Alliance warned that "NAB has demanded rules that would permit broadcasters to devote more than 95 percent of their broadcast spectrum to non-broadcast services." Instead of setting minimum broadcast service requirements, the document "seeks comment on whether to require NextGen TV broadcasters to dedicate a specific portion of their licensed spectrum to broadcasting free over-the-air video programming after they transition to 3.0." This approach treats spectrum licenses more like property rights than temporary permissions to serve public purposes. The 2009 digital television transition offers a contrasting example. That transition freed up spectrum for wireless broadband, delivered measurable public benefits, and included specific deadlines alongside a federal subsidy program. The current proceeding identifies no comparable public interest justification.
The commission notes that "approximately 14 million ATSC 3.0-capable television sets and 300,000 external converters had sold through 2024," while Nielsen estimates 125 million TV households nationwide. After eight years of voluntary deployment, less than 12 percent of television households have equipment capable of receiving 3.0 transmissions. The Consumer Technology Association (CTA) argues that this reflects an appropriate market response. "If broadcasters are concerned about market demand for ATSC 3.0 tuners, they need to do their part in consumer education and promotion rather than seeking a technology mandate," CTA stated. The organization’s March 2025 retail analysis found that comparable television models with ATSC 3.0 support cost an average of $157 more than ATSC 1.0-only models. The commission seeks comment on whether to mandate ATSC 3.0 tuners in all new television receivers, comparing its 2002 requirement for digital television tuners.
However, the circumstances are substantially different. The earlier mandate was accompanied by a firm transition deadline, ensuring that consumer investment would not be wasted. The current proceeding explicitly rejects mandatory conversion dates, instead "seeking comment on whether there should be an eventual sunset of 1.0 broadcasting." This creates circularity… the commission considers requiring consumers to purchase equipment for a broadcast standard that may or may not eventually replace the current system, depending on future rulemakings informed by comments not yet filed. The MVPD carriage questions illustrate similar ambiguity. Current rules permit mandatory carriage only of ATSC 1.0 signals, meaning stations operating exclusively in 3.0 format cannot assert must-carry rights. The commission seeks comment on extending carriage obligations while noting that NCTA characterizes such requirements as imposing "formidable technical challenges" and potentially unconstitutional burdens.
NCTA states that redistributing 3.0 signals would require MVPDs to "purchase and install new transcoders, receivers, demultiplexers and demodulators," though it provides no specific cost estimates. The commission requests detailed information but does not indicate what level of cost would be considered unreasonable or what public interest benefits would justify such requirements. Overall, the approach reflects fundamental tension in broadcast regulation. Licensees receive exclusive use of public spectrum in exchange for serving public interest obligations, including universal access, localism and emergency alerting. Yet the commission’s framework treats these obligations as constraints to be minimized rather than as the primary justification for spectrum allocation. "Broadcasting’s traditional social contract, where stations received exclusive spectrum use in exchange for providing free programming while meeting public interest obligations."
Public Knowledge argued that "many of the kinds of services that broadcasters seek to provide through ATSC 3.0, such as interactive features, are already available through online streaming platforms, where broadcasters are free to compete on equal terms." This points toward the question the proceeding avoids: whether broadcast spectrum remains the appropriate mechanism for services ATSC 3.0 enables, or whether such services belong on internet platforms not dependent on exclusive spectrum allocations. Chairman Brendan Carr’s October 6 blog post describing ATSC 3.0 as "the future of broadcasting" signals support for the transition. Yet, the notice declines to provide the regulatory certainty that Sinclair Broadcasting and Pearl TV argue is essential. Sinclair’s August 19 meeting with Carr emphasized that "the best way to spur the availability of more consumer devices is to provide certainty regarding a sunset." The commission’s framework creates the opposite.
The LPTV Broadcasters Association calls mandatory ATSC 3.0 adoption "crony capitalism at its worst," warning that requirements would transfer value from consumers and small broadcasters to patent holders. Frank Copsidas, association president, noted that ATSC 3.0 "is built on a web of patents controlled by a handful of companies through patent pools" with licensing fees reaching $6.75 per television unit. The commission’s departure from requiring "reasonable and non-discriminatory" patent licensing has produced tangible consequences including LG Electronics’ halt of ATSC 3.0-compatible TV production following a patent lawsuit loss. The document notes that "excessive fees or licensing disputes could further limit competition" and states the commission "continues to monitor the marketplace for ATSC 3.0 Standard Essential Patents," yet establishes no enforcement mechanisms. The result maximizes broadcaster flexibility while distributing costs and risks to consumers, manufacturers, small broadcasters and MVPDs without establishing corresponding public benefits.
The commission’s decision to eliminate mandatory simulcasting while seeking comment on an eventual 1.0 sunset creates a system in which individual stations can force market participants to accommodate new technology without regulatory assurance that the technology will become universal. The commission states it "tentatively agree[s] with NAB that market dynamics are likely to ensure that popular programming remains widely accessible." Yet encryption systems that render broadcasts inaccessible on certified devices suggest market incentives may not automatically produce outcomes consistent with universal access. The commission’s approach transfers fundamental policy choices from regulatory proceedings to market negotiations, treating broadcast licenses as flexible assets rather than conditional authorizations to serve public needs.
For consumers unable to receive encrypted broadcasts on previously purchased equipment, for manufacturers uncertain whether to invest in ATSC 3.0 production, for MVPDs facing upgrade costs and for small broadcasters concerned about certification expenses, the message is clear: resolve these matters through market negotiations rather than regulatory protection. This may reflect a coherent philosophy trusting market forces to produce efficient outcomes. But it represents a departure from the principle that spectrum allocated for broadcasting carries public service obligations that oversight must ensure are met. The ultimate test will be whether millions of Americans who rely on free over-the-air television retain meaningful access as the broadcast standard evolves, or whether that access becomes contingent on purchasing new equipment and securing approval from private certification entities.