On November 16, 2017, the FCC adopted an Order permitting broadcast stations to voluntarily transmit signals in the new ATSC 3.0 technical standard, also known as “NextGen TV.”  Before doing so, stations will need to obtain approval from the FCC and will also be required to make their signal available in the current ATSC 1.0 technical standard through simulcasting.  While the Order does not require cable operators to carry ATSC 3.0 signals under the FCC’s must-carry rules, the FCC declined to adopt rules addressing the issue of ATSC 3.0 signals in retransmission consent negotiations.

What is ATSC 3.0?  ATSC 3.0 is the “NextGen” technical standard for broadcast transmissions.  Unlike the current ATSC 1.0 standard, ATSC 3.0 is IP-based, which gives broadcasters considerable flexibility to transmit in a variety of advanced formats, including 4K or Ultra High Definition, and to offer enhanced features, such as localized alerts and data services.  Most importantly, ATSC 3.0 signals are not backward compatible with existing MVPD equipment.  In order to utilize ATSC 3.0 signals, operators and consumers alike will need new equipment to receive and decode ASTC 3.0 signals, including donwcoonverting the signal if necessary.

Simulcasting Requirement.  Broadcast stations choosing to transmit signals in ATSC 3.0 must simulcast the ATSC 3.0 primary stream in ATSC 1.0.  To do so, broadcasters must partner with other stations within the local market to continue transmission in 1.0.  A station can either:

• Air its ATSC 3.0 channel at the other station’s (the “host” or “lighthouse”) facility, while using its original facility to provide the ATSC 1.0 simulcast channel for both broadcasters; or
• Air its ATSC 1.0 simulcast at the host facility, while converting its original facility to ATSC 3.0.

The 1.0 simulcast signal must be “substantially similar” to the programming offered on the 3.0 signal for at least five years.  In other words, the programming must be the same except for features based on the enhanced ATSC 3.0 capabilities, advertisements, and promotions for upcoming programs.  Simulcast signals from host facilities must continue to meet the community of license requirement for the existing signal and be assigned to the same DMA as the originating station.  There are no requirements that a broadcaster’s additional ATSC 3.0 multicast signals be transmitted in ATSC 1.0 or that simulcast programming be in the same resolution or quality as existing transmissions (e.g., high definition).  Low-power and translator stations are exempt from the simulcasting requirement, and stations may seek waiver of the local simulcasting requirement.

Must Carry and Retransmission Consent.  Only a broadcaster’s ATSC 1.0 signal retains must-carry rights while the FCC requires local simulcasting.  A guest signal at a host facility can assert must carry if it (i) qualified for and exercised must-carry rights at its original location; and (ii) continues to qualify for must carry at the host facility (including delivering a good quality ATSC 1.0 signal). 

The FCC declined to impose restrictions on retransmission consent negotiations involving ATSC 3.0 signals at this time, stating that carriage of the 3.0 signal is “best left to marketplace negotiations.”  The FCC also declined to require broadcasters to reimburse MVPDs for costs of receiving and processing ATSC 1.0 simulcasts, but stated that MVPDs are not required to purchase 3.0 decoders as a result of voluntary deployment of the ATSC 3.0 standard.

Further Notice of Proposed Rulemaking.  In addition to the Order, the FCC adopted a Further Notice of Proposed Rulemaking, seeking further comment on several issues:

• Simulcasting waivers and exceptions.  The FCC seeks further comment about the circumstances in which waiver of the local simulcasting requirement is appropriate, and whether non-commercial stations and Class A stations should be exempt from the simulcast requirement.
• Significantly viewed status.  The FCC tentatively concludes that simulcasting should not change a station’s status as “significantly viewed,” and seeks comment on this conclusion.

If you have questions about ATSC 3.0 and retransmission consent negotiations, please contact Scott Friedman at sfriedman@cinnamonmueller.com or (312) 580-8557.

FINAL REMINDER:  ISPs Must Electronically Submit DMCA

Designated Agent by December 31, 2017

Filing Required Even if ISP Previously Paper Filed Agent Information 

All Internet Service Providers (“ISPs”) that registered a designated agent by paper filing prior to December 1, 2016 must re-register their agent electronically by December 31, 2017 to maintain coverage under the safe harbor protection afforded by section 512 of the Digital Millennium Copyright Act (“DMCA”). 

Background.  In 1998, Congress enacted the Online Copyright Infringement Liability Limitation Act (codified at 17 U.S.C. § 512) as part of the DMCA.  Among other things, Section 512 provides safe harbors from copyright infringement liability for ISPs, through which ISPs can obtain immunity from claims for damages arising out of copyright infringement by users.  To qualify for this safe harbor protection, an ISP must fulfill several compliance obligations including designating an agent to receive notifications of claimed copyright infringement. 

Since the DMCA’s enactment, ISPs have designated agents with the Copyright Office using the Office’s or their own paper form.  The Copyright Office then has made scanned copies of these filings available to the public through its website.  Although the DMCA requires ISPs to update their designations as information changes, the Copyright Office undertook an examination of its directory and found that much of the information had become inaccurate and outdated.  In 2011, the Copyright Office issued a notice of proposed rulemaking (“NPRM”) proposing a new, fully-electronic system for ISPs to designate registered agents. 

On November 1, 2016, the Copyright Office’s Final Rule amending the procedure to designate a registered agent was published in the Federal Register.  The rule took effect on December 1, 2016.

New Electronic Agent Registration Requirement.  Every ISP is required to submit a new designation electronically by December 31, 2017 to maintain an active designation with the Copyright Office and be covered by the DMCA’s safe harbor provision, even if the ISP previously filed a designated agent with the Copyright Office by paper filing.  During the transition period, a compliant designation in either the old directory or the new directory will satisfy the ISP’s obligations and the ISP will remain covered by the safe harbor protections until December 31, 2017.  The fee to designate an agent electronically is set at $6.

To access the online registration system, ISPs must go to the DMCA designated agent log-in to start the registration process.  An ISP’s registered agent designation will last for a 3-year period, at which point it must be renewed electronically.  The three-year clock resets each time an agent designation is amended through the Copyright Office.  While parent companies can manage the designations of all of their subsidiaries through one central account, ISPs that are separate legal entities each require separate designations. 

ISPs must also post their designated agent information on their websites and keep it up-to-date to qualify for the safe harbor provision.

If you have questions about the DMCA or designating your registered agent to qualify for the safe harbor provision, please contact Scott Friedman at sfriedman@cinnamonmueller.com or (312) 580-8557 or Bruce Beard at bbeard@cinnamonmueller.com or (314) 394-1535.