The Federal Communications Commission's (FCC) announcement regarding ATSC 3.0 on October 7th raises concerns, not for what it proposes, but for what it avoids deciding. The document reveals a fundamental challenge: the FCC's uncertainty on how to effectively regulate spectrum designated for public use. The elimination of mandatory simulcasting, combined with granting broadcasters discretion over transition timelines, essentially transfers authority over public spectrum from the regulatory body to private license holders. This contrasts with previous transitions where the commission defined specific deadlines and technical requirements.
“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,” the FCC stated. This assumes that individual broadcaster business decisions automatically align with the public interest. However, the situation surrounding encryption suggests otherwise. The ATSC 3.0 Security Authority (A3SA), a private entity founded by major networks like ABC, CBS, Fox, NBCUniversal and Univision, manages digital rights management systems. These systems currently prevent some certified NextGen TV devices from displaying encrypted broadcasts. The FCC acknowledges "thousands of consumer comments" regarding the frustration that previously purchased equipment may no longer function for free, over-the-air television.
This leads to a critical question: do encrypted broadcasts requiring proprietary decryption qualify as “broadcasting” under the Communications Act's requirement that transmissions be “intended to be received by the public?" The notice 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 not, stations using such encryption may be operating inconsistently with their licenses.
Public Knowledge, a policy think tank, argues, "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 approach, seeking comment rather than establishing standards, allows the current system to continue, even while acknowledging its potential conflict with legal requirements.
The question of spectrum allocation follows a similar pattern. Current rules require stations to "transmit at least one free over-the-air video signal," but ATSC 3.0’s enhanced 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 establishing minimum broadcast service requirements, the FCC "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 authorizations to serve public purposes. The 2009 digital television transition, which freed spectrum for wireless broadband and included specific deadlines and a federal subsidy program, offers a clear contrast. The current proceeding lacks a comparable public interest justification.
The FCC 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. This means that 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) believes this reflects a market response, stating, “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.” The CTA also 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 it to the 2002 mandate for digital television tuners. However, circumstances differ. The earlier mandate came with a firm transition deadline, ensuring consumer investment wouldn't be stranded. 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 a circular problem: the FCC considers requiring consumers to purchase equipment for a broadcast standard that may or may not replace the current system.
MVPD carriage questions present similar ambiguity. Current rules only permit mandatory carriage of ATSC 1.0 signals. The commission seeks comment on extending carriage obligations, while NCTA characterizes such requirements as imposing "formidable technical challenges” and potentially unconstitutional burdens. NCTA claims redistributing 3.0 signals would require MVPDs to "purchase and install new transcoders, receivers, demultiplexers and demodulators," without providing specific cost estimates. The FCC requests detailed information but doesn't indicate what cost level would be unreasonable or what public benefits would justify such requirements.
Overall, the approach highlights a fundamental tension in broadcast regulation. Licensees receive exclusive use of public spectrum in exchange for serving public interest obligations. However, the FCC's framework treats these obligations as constraints to be minimized. Public Knowledge argues 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 raises the question of whether broadcast spectrum remains the best mechanism for the services ATSC 3.0 enables, or whether those services belong on internet platforms. Chairman Brendan Carr's support for the transition contrasts with the notice's lack of regulatory certainty, which Sinclair Broadcasting and Pearl TV deem essential. The LPTV Broadcasters Association calls mandatory ATSC 3.0 adoption “crony capitalism at its worst,” warning of value transfer from consumers and small broadcasters to patent holders. Frank Copsidas 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 FCC's departure from requiring “reasonable and non-discriminatory” patent licensing has led to consequences, including LG Electronics’ halt of ATSC 3.0-compatible TV production after a patent lawsuit loss. The FCC acknowledges that “excessive fees or licensing disputes could further limit competition” but establishes no enforcement mechanisms.
The result is maximized broadcaster flexibility, but with costs and risks for consumers, manufacturers, small broadcasters, and MVPDs, without clear public benefits. The commission's decision to eliminate mandatory simulcasting while seeking comment on an eventual 1.0 sunset, allows individual stations to force market participants to adopt new technology without assurance of its universal adoption.
The FCC trusts market dynamics to ensure popular programming remains widely accessible. However, encryption systems limiting access on certified devices suggest market incentives might not align with universal access. Ultimately, the FCC is shifting policy choices to market negotiations, treating broadcast licenses as flexible assets rather than conditional authorizations to serve public needs. For those impacted by this shift, the message is to resolve matters through market negotiations, not regulatory protection.
This shift represents a departure from the principle that spectrum allocated for broadcasting carries public service obligations. The critical question is whether millions who rely on free over-the-air television will retain meaningful access as the broadcast standard evolves, or whether that access becomes contingent on purchasing new equipment and securing approval from private entities.