The Federal Communications Commission (FCC)'s recent notice regarding ATSC 3.0, issued on October 7, raises questions about the future of broadcasting regulation. The document's significance lies not in its proposals, but in its reluctance to make firm decisions. It reveals a fundamental challenge: the commission's uncertainty on how to effectively regulate spectrum allocated for public use.
The filing removes mandatory simulcasting requirements, granting broadcasters greater autonomy over transition timelines. This effectively shifts authority over public spectrum from the regulatory body to private license holders. This contrasts with previous broadcast transitions, where the commission set clear deadlines and technical specifications to achieve a specific goal. As 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 approach assumes that the business decisions of individual broadcasters align with the public interest.
One major concern is encryption. The ATSC 3.0 Security Authority (A3SA), a private entity established by major broadcasters, manages digital rights management systems that can prevent certain NextGen TV devices from displaying encrypted broadcasts. The commission acknowledges receiving "thousands of consumer comments" expressing frustration that previously purchased equipment may no longer work for free over-the-air television. This raises the crucial question of whether 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 encrypted transmissions requiring private consortium certification do not meet the statutory definition, stations using such encryption may be operating inconsistently 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 commission's approach involves seeking comments rather than setting standards, allowing the current system to continue while acknowledging its potential conflict with statutory requirements. The spectrum allocation issue follows a similar pattern. Current rules require stations to "transmit at least one free over-the-air video signal at no direct charge to viewers," but ATSC 3.0's enhanced capacity enables broadcasters to dedicate 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 deference treats spectrum licenses as property rights rather than temporary authorizations to serve public purposes. The 2009 digital television transition stands in contrast, as it freed spectrum for wireless broadband, offered measurable public benefits, and included specific deadlines and a federal subsidy program. The current proceeding identifies no similar public interest justification. While "approximately 14 million ATSC 3.0-capable television sets and 300,000 external converters had sold through 2024," Nielsen estimates 125 million TV households nationwide. After eight years of voluntary deployment, fewer than 12 percent of television households have equipment capable of receiving 3.0 transmissions. The Consumer Technology Association (CTA) argues this reflects an appropriate 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." CTA’s analysis showed 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 mandating ATSC 3.0 tuners in all new television receivers, drawing a parallel to its 2002 requirement for digital television tuners. However, the circumstances differ significantly. The earlier mandate had 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," creating a circularity where consumers are potentially required to purchase equipment for a broadcast standard that may or may not eventually replace the current system.
The MVPD carriage questions present similar ambiguity. Current rules only permit mandatory carriage 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," but 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.
The overall approach highlights the inherent tension in broadcast regulation: Licensees receive exclusive use of public spectrum in exchange for serving public interest obligations. However, the commission's framework treats these obligations as constraints to be minimized rather than the primary justification for spectrum allocation. 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 services ATSC 3.0 enables, or whether such services belong on internet platforms not dependent on exclusive spectrum allocations.
Chairman Brendan Carr’s support for ATSC 3.0, expressed in an October 6 blog post describing it as "the future of broadcasting," is clear. Yet, the notice fails to provide the regulatory certainty deemed essential by figures such as Sinclair Broadcasting. The LPTV Broadcasters Association views mandatory ATSC 3.0 adoption as "crony capitalism at its worst," warning that requirements would transfer value from consumers and small broadcasters to patent holders. Association president 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 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 where individual stations can force market participants to accommodate new technology without regulatory assurance that the technology will become universal. Ultimately, the commission's approach transfers policy choices to market negotiations, treating broadcast licenses as flexible assets rather than conditional authorizations to serve public needs. The question remains whether millions of Americans who rely on free over-the-air television will retain meaningful access as the broadcast standard evolves, or whether that access will become contingent on purchasing new equipment and securing approval from private certification entities.