The Federal Communications Commission's (FCC) notice regarding ATSC 3.0, issued on October 7, raises questions about the future of broadcast regulation. Critics suggest the FCC is abdicating its regulatory role, shifting power to private entities.
The core issue, according to some, is that the Commission appears unsure how to regulate the spectrum designated for public use. The decision to eliminate mandatory simulcasting requirements, while granting broadcasters discretion over transition timelines, is viewed by some as effectively transferring control of public spectrum from the FCC to private license holders. This contrasts sharply with prior broadcast transitions, during which the commission established specific deadlines and technical requirements.
The FCC stated, "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 business decisions made by individual broadcasters will align with the public interest. However, critics argue that the current situation suggests otherwise.
The issue of encryption highlights this concern. The ATSC 3.0 Security Authority (A3SA), a private organization founded by major networks like ABC, CBS, Fox, NBCUniversal, and Univision, manages digital rights management systems. These systems currently prevent certain NextGen TV devices from displaying encrypted broadcasts. The commission acknowledged receiving “thousands of consumer comments” expressing frustration that previously purchased equipment may no longer work to receive free, over-the-air television.
This raises a fundamental question: Does encryption, requiring proprietary decryption, still qualify as "broadcasting" under the Communications Act, which mandates transmissions "intended to be received by the public"? The notice stated, "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 necessitating certification from a private consortium don't meet the legal definition of broadcasting, stations employing such encryption may be operating outside the scope of their licenses. Public Knowledge, a policy think tank, argued that "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 commentary instead of setting standards – allows the existing system to persist despite potential conflicts with legal requirements. This pattern repeats itself, with the commission identifying key policy questions but deferring resolutions to future actions.
The spectrum allocation question follows a similar pattern. Current regulations mandate stations to "transmit at least one free over-the-air video signal at no direct charge to viewers," but ATSC 3.0's enhanced capabilities allow broadcasters to dedicate significant bandwidth to datacasting and other non-broadcast services. The American Television Alliance cautioned that "NAB has demanded rules that would permit broadcasters to devote more than 95 percent of their broadcast spectrum to non-broadcast services."
Rather than establishing 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 as property rights than temporary authorizations granted to serve the public.
The 2009 digital television transition offers a stark contrast. That transition freed up spectrum for wireless broadband, delivered demonstrable public benefits, and included specific deadlines and a federal subsidy program. The current action lacks a comparable public interest justification.
The commission acknowledges 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% of television households have equipment capable of receiving 3.0 transmissions. The Consumer Technology Association (CTA) suggested this reflects a normal market response. CTA stated, “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’s March 2025 retail analysis revealed that comparable television models with ATSC 3.0 support cost an average of $157 more than ATSC 1.0-only models.
The commission is seeking feedback on mandating ATSC 3.0 tuners in all new television receivers, drawing a parallel to its 2002 requirement for digital television tuners. However, the situations are significantly different. The earlier mandate was accompanied by a firm transition deadline, ensuring consumer investment wouldn't be wasted. The current action 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 commission is considering 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.
MVPD carriage questions reveal 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 is seeking input on extending carriage obligations while acknowledging that NCTA characterizes such requirements as imposing “formidable technical challenges” and potentially unconstitutional burdens. NCTA stated that redistributing 3.0 signals would require MVPDs to "purchase and install new transcoders, receivers, demultiplexers and demodulators," though it offers no specific cost estimates. The commission is requesting detailed information but provides no guidance on what cost level would be considered unreasonable or what public interest benefits would justify such mandates.
Fundamentally, the approach illustrates a conflict in broadcast regulation. Licensees are granted exclusive use of public spectrum in exchange for fulfilling public interest obligations, including universal access, localism, and emergency alerting. However, the FCC's framework appears to treat these obligations as constraints to be minimized rather than as the core 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 raises the question the proceeding avoids: Is broadcast spectrum still the best mechanism for services that ATSC 3.0 enables, or should those services reside on internet platforms not reliant on exclusive spectrum allocations?
Chairman Brendan Carr's October 6 blog post, describing ATSC 3.0 as “the future of broadcasting,” indicates support for the transition. Yet, the notice fails to provide the regulatory certainty that Sinclair Broadcasting and Pearl TV deem 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," cautioning that requirements would shift 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 demanding “reasonable and non-discriminatory” patent licensing has resulted in consequences, including LG Electronics halting ATSC 3.0-compatible TV production after losing a patent lawsuit. The document acknowledges 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 it establishes no enforcement mechanisms.
The result is maximized 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 adopt 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.” However, encryption systems that render broadcasts inaccessible on certified devices suggest that 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.