Analysis: NextGen TV transition exposes tensions between public airwaves and private control

The Federal Communications Commission’s October 7 notice on ATSC 3.0 is notable less for what it proposes than for what it refuses to decide.

The commission has produced a document that illuminates a basic problem: it no longer knows how to regulate the spectrum allocated for public use.

The filing eliminates mandatory simulcasting requirements while preserving broadcaster discretion on transition timing — effectively transferring authority over public spectrum from the regulatory body to private license holders.

FCC proposes voluntary approach to ATSC 3.0 transition, eliminating simulcast requirements

This differs markedly from previous broadcast transitions, where the commission established specific deadlines and technical requirements with a clear end goal. 

“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 document stated. The formulation assumes that individual broadcaster business decisions align with public interest outcomes. The proceeding itself suggests otherwise.

Consider encryption. Digital rights management systems administered by the ATSC 3.0 Security Authority – a private entity founded by ABC, CBS, Fox, NBCUniversal and Univision – currently prevent certain certified 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 to receive free, over-the-air television.

This prompts a definitional question with significant implications: whether encrypted broadcasts requiring proprietary decryption constitute “broadcasting” under the Communications Act’s requirement that transmissions be “intended to be received by the public.”

“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,” the notice stated. If encrypted transmissions requiring certification from a private consortium do not meet the statutory definition, stations using such encryption may not be operating consistent with their licenses.

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“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,” wrote Public Knowledge, a policy think tank focused on freedom.

The commission’s approach — seeking comment rather than establishing standards — permits the current system to continue while acknowledging its potential inconsistency with statutory requirements.

This pattern recurs throughout: identifying significant policy questions while deferring resolution to future proceedings.

The spectrum allocation question follows the same template.

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 devote 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.”

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 deference treats spectrum licenses as property rights rather than temporary authorizations to serve public purposes. The contrast with the 2009 digital television transition is instructive. That conversion freed spectrum for wireless broadband, produced 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, fewer than 12 percent of television households possess equipment capable of receiving 3.0 transmissions.

The Consumer Technology Association argued 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.

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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.

Yet circumstances differ substantially. The earlier mandate accompanied a firm transition deadline that ensured consumer investment would not 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 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.

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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.