By: David Oxenford, Wilkinson Barker Knauer LLP
In one of those weird little quandaries in the broadcast legal world, the FCC just asked for comments on a petition for declaratory ruling filed by the NAB seeking a clarification as to who is responsible for the content of simulcast streams provided to comply with the ATSC 3.0 conversion rules. Under those rules, for a station to convert to the new NextGen TV transmission system, it must leave behind a simulcast stream of its primary video channel – with that stream being broadcast on a subchannel of a station continuing to operate in the current digital television standard ( a “lighthouse” continuing to transmit the programming to viewers who have not acquired a NextGen TV set – see our articles here, here and here addressing other aspects of the lighthouse signal). In such agreements, there is often a reciprocal agreement that the station hosting the simulcast stream gets to provide its own programming on a simulcast stream of the station that is converting to ATSC 3.0. What has not been explicitly addressed by the FCC is the legal responsibility for the content and other public interest obligations that attach to those streams.
In the normal course, a licensee is responsible for all programming that runs on its station, including on its own subchannel programming streams. As part of the incentive auction and subsequent repacking of the television band, where the FCC blessed channel-sharing arrangements where two or more licensees share a single television channel, the FCC has made clear that there are two separate licensees and each licensee is responsible for their own programming, public file and other regulatory obligations (see our articles here and here on channel sharing). But in the ATSC 3.0 conversion, the question has not been squarely addressed even if the answer is implied, but clearly the NAB is correct that the answer should be made crystal clear.
As the FCC has required that the station converting to ATSC 3.0 leave behind a simulcast of its broadcast programming in the current ATSC 1.0 transmission standard, and that programming is supposed to be a simulcast, it would seem obvious that the station originating the programming, rather than the one hosting it, should have the legal responsibility. The host station does not necessarily have any prior knowledge of what programming is to be broadcast – in fact the host may well be a competitor of the converting station which is originating the programming run on the simulcast stream. If the host station has nothing to do with the origination of that programming coming from another licensee, it seems as if that programming and all associated public interest obligations should be treated just like programming in a channel share agreement as being the responsibility of the originating station.
But, as with so much else in the legal world, the FCC must go through the motions of seeking public comment on this clarification – hence the request for comments. The request also asks for comment on a proposal raised by the FCC as to the legal obligations that attach to other streams that are run on a station but originated on another station. For instance, an ATSC 1.0 may host the required “lighthouse” simulcast stream of the primary video channel of a station converting to ATSC 3.0, but that converting station may also ask that the host station also host other non-primary streams originated by the converting station – and they may even be streams that will not be broadcast in NextGen TV. As those streams are being originated by another licensee, shouldn’t those streams be treated in the same manner as the primary stream?
Comments on these questions are due December 24, with replies due January 25 – so this matter will be resolved by a new FCC.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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