[Federal Register Volume 87, Number 129 (Thursday, July 7, 2022)]
[Proposed Rules]
[Pages 40464-40476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14470]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 74

[GN Docket No. 16-142; FCC 22-47; FR ID 93764]


Authorizing Permissive Use of the ``Next Generation'' Broadcast 
Television Standard

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on the state

[[Page 40465]]

of the Next Generation Television (``Next Gen TV'' or ``ATSC 3.0'') 
transition and on the scheduled sunsets of two rules adopted in the 
First Next Gen TV Report and Order. First, the Commission reviews and 
seeks comment on the progress of Next Gen TV broadcasters' voluntary, 
market-driven deployment of ATSC 3.0 service and the current state of 
the ATSC 3.0 marketplace, including whether holders of essential 
patents for the ATSC 3.0 standards are licensing such patents on 
reasonable and non-discriminatory (RAND) terms. Second, the Commission 
seeks comment on the scheduled 2023 sunset of the rule requiring that a 
Next Gen TV station's ATSC 1.0 simulcast primary video programming 
stream be ``substantially similar'' to its 3.0 primary programming 
stream. Third, the Commission seeks comment on the scheduled 2023 
sunset of the requirement that a Next Gen TV station comply with the 
ATSC A/322 standard.

DATES: Comments are due on or before August 8, 2022; reply comments are 
due on or before September 6, 2022.

ADDRESSES: You may submit comments, identified by GN Docket No. 16-142, 
by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    Filings can be sent by commercial overnight courier or by first-
class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington, DC 20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19.\1\
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    \1\ FCC Announces Closure of FCC Headquarters Open Window and 
Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788 (OMD 
2020). See https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
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     During the time the Commission's building is closed to the 
general public and until further notice, if more than one docket or 
rulemaking number appears in the caption of a proceeding, paper filers 
need not submit two additional copies for each additional docket or 
rulemaking number; an original and one copy are sufficient.
    People with Disabilities. To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Evan Baranoff, [email protected], of the Media 
Bureau, Policy Division, (202) 418-2120. Direct press inquiries to 
Janice Wise at (202) 418-8165.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Further Notice of Proposed Rulemaking (FNPRM), FCC 22-47, adopted on 
June 21, 2022 and released on June 22, 2022. The full text of this 
document is available electronically via the FCC's Electronic Document 
Management System (EDOCS) website at https://www.fcc.gov/edocs or via 
the FCC's Electronic Comment Filing System (ECFS) website at https://www.fcc.gov/ecfs. (Documents will be available electronically in ASCII, 
Microsoft Word, and/or Adobe Acrobat.) Alternative formats are 
available for people with disabilities (Braille, large print, 
electronic files, audio format), by sending an email to [email protected] 
or calling the Commission's Consumer and Governmental Affairs Bureau at 
(202) 418-0530 (voice), (202) 418-0432 (TTY).

Synopsis

I. Introduction

    1. In this Third Further Notice of Proposed Rulemaking (FNPRM), we 
seek comment on the state of the Next Generation Television (``Next Gen 
TV'' or ``ATSC 3.0'') transition and on the scheduled sunsets of two 
rules adopted in the First Next Gen TV Report and Order, 83 FR 4998. As 
part of our assessment, we review and seek comment on the progress of 
Next Gen TV broadcasters' voluntary, market-driven deployment of ATSC 
3.0 service and the current state of the ATSC 3.0 marketplace, 
including whether holders of essential patents for the ATSC 3.0 
standards are licensing such patents on reasonable and non-
discriminatory (RAND) terms. Next, we seek comment on the scheduled 
2023 sunset of the rule requiring that a Next Gen TV station's ATSC 1.0 
simulcast primary video programming stream be ``substantially similar'' 
to its 3.0 primary programming stream. Finally, we seek comment on the 
scheduled 2023 sunset of the requirement that a Next Gen TV station 
comply with the ATSC A/322 standard.

II. Background

    2. Next Gen TV is the newest broadcast TV transmission standard, 
developed by the Advanced Television Systems Committee (ATSC), which 
promises to enable broadcasters to deliver an array of new video and 
non-video services and enhanced content features to consumers. Also 
called ``ATSC 3.0'' or ``3.0'', this new standard merges the 
capabilities of over-the-air (OTA) broadcasting with the broadband 
viewing and information delivery methods of the internet, using the 
same 6 MHz channels presently allocated for DTV service. As 3.0 
proponents have previously explained to the Commission, the greater 
spectral capacity of the new standard and its internet-Protocol (IP) 
delivery component will allow broadcasters to provide consumers with a 
higher quality television viewing experience, such as ultra-high-
definition (UHD) picture resolutions and immersive audio. It also has 
the potential to enable broadcasters to reach viewers on both home and 
mobile screens. In addition, ATSC 3.0 will allow broadcasters to offer 
enhanced public safety capabilities, such as geo-targeting of emergency 
alerts to tailor information to particular communities and emergency 
alerting capable of waking up sleeping devices to warn consumers of 
imminent emergencies, as well as greater accessibility options, 
localized content, and interactive educational children's content. And 
as an IP-based standard, ATSC 3.0 could enable advanced one-way 
datacasting services to help support the proliferation of new, IP-based 
consumer applications.
    3. In November 2017, the Commission authorized television 
broadcasters to use the Next Gen TV transmission standard on a 
voluntary, market-driven basis.\2\ The Commission required that 
broadcasters voluntarily deploying ATSC 3.0 service must, with very 
limited exceptions, continue to air at least their primary stream using 
the current-generation digital television

[[Page 40466]]

(DTV) transmission standard,\3\ also called ``ATSC 1.0'' or ``1.0,'' to 
their viewers through ``local simulcasting'' arrangements with other 
stations in their local market.\4\
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    \2\ In June 2020, the Commission adopted a Second Report and 
Order and Order on Reconsideration, resolving the remaining issues 
raised in the Next Gen TV Further Notice, as well as dismissing (or 
alternatively denying) the two petitions for reconsideration filed 
in response to the First Next Gen TV Report and Order.
    \3\ LPTV and TV translator stations may deploy ATSC 3.0 service 
without providing an ATSC 1.0 simulcast signal. In addition, full 
power and Class A stations may request a waiver of the simulcast 
requirements.
    \4\ Under the Commission's rules, a Next Gen TV station is 
encouraged, but not required, to simulcast its existing non-primary 
video programming streams (multicast streams) in a 1.0 format. In 
November 2021, the Commission initiated a proceeding to allow Next 
Gen TV stations to include within their license certain of their 
multicast streams that are aired in a different service on ``host'' 
stations during a transitional period, using the same licensing 
framework, and to a large extent the same regulatory regime, 
established for the simulcast of primary video programming streams 
on ``host'' station facilities.
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    4. The Commission found that a local simulcasting requirement is 
crucial to deploying Next Gen TV service in order to minimize viewer 
disruption. The Next Gen TV standard is not backward-compatible with 
pre-existing TV sets or receivers, which have only ATSC 1.0 and, in 
many cases, now-obsolete analog tuners.\5\ Accordingly, viewers will be 
unable to watch ATSC 3.0 transmissions on such televisions without 
additional equipment. Thus, it is critical that Next Gen TV 
broadcasters continue to provide service using the current ATSC 1.0 
standard while the marketplace creates and disseminates devices 
compatible with the new 3.0 transmission standard, in order to avoid 
forcing viewers to acquire expensive new equipment immediately or 
depriving them of their local television service during the transition. 
Because a TV station cannot, as a technical matter, simultaneously 
broadcast in both 1.0 and 3.0 format from the same facility on the same 
physical channel, local simulcasting must be effectuated through 
voluntary partnerships between local market broadcasters that seek to 
provide Next Gen TV service.\6\ The Commission established certain 
requirements in the First Next Gen TV Report and Order for the 
provision of simulcast signals to ensure that local simulcasting is 
effective in protecting viewers. (By the time the transition is 
complete, any temporary authority granted for local simulcasting will 
expire, and a station will once again be required to air all of its 
licensed programming on its own single channel.)
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    \5\ As of August 31, 2017, new television receivers may, but are 
no longer required to, contain analog tuners.
    \6\ A Next Gen TV station must partner with another television 
station (``host'') in its local market to either: (1) air an ATSC 
3.0 channel at the host's facility, while using its original 
facility to continue to provide an ATSC 1.0 simulcast channel, or 
(2) air an ATSC 1.0 simulcast channel at the host's facility, while 
converting its original facility to the ATSC 3.0 standard in order 
to provide a 3.0 channel. In either case, a Next Gen TV broadcaster 
must simulcast the primary video programming stream of its ATSC 3.0 
channel in an ATSC 1.0 format, so that viewers will continue to 
receive ATSC 1.0 service.
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    5. The Commission also required that Next Gen TV broadcasters 
comply with all of its broadcast rules, including, but not limited to, 
our rules regarding foreign ownership, political broadcasting, 
children's programming, equal employment opportunities, public 
inspection file, indecency, sponsorship identification, contests, the 
CALM Act, the Emergency Alert System (EAS), and accessibility for 
people with disabilities. The Commission emphasized that broadcasters, 
equipment manufacturers, and MVPDs must comply with the Commission's 
Part 79 captioning rules including closed captioning decoder 
requirements, video description and emergency information accessibility 
requirements, and requirements for user interfaces, programming guides, 
and menus.
    6. ``Substantially Similar'' Rule. In the 2017 First Next Gen TV 
Report and Order, the Commission adopted a requirement that the 
programming aired on a Next Gen TV station's ATSC 1.0 simulcast channel 
be ``substantially similar'' to that of the primary video programming 
stream on the ATSC 3.0 channel.\7\ This means that the programming must 
be the same, except for programming features that are based on the 
enhanced capabilities of ATSC 3.0 and promotions for upcoming 
programs.\8\ In adopting this approach, the Commission found it ``will 
help ensure that viewers do not lose access to the broadcast 
programming they receive today, while still providing flexibility for 
broadcasters to innovate and experiment with new, innovative 
programming features using Next Gen TV technology.'' The Commission 
decided, however, that the substantially similar requirement would 
expire on July 17, 2023, unless the Commission takes action to extend 
it.\9\ In this regard, the Commission concluded that, while ``this 
[substantially similar] requirement is necessary in the early stages of 
ATSC 3.0 deployment, it could unnecessarily impede Next Gen TV 
programming innovations as the deployment of ATSC 3.0 progresses.'' The 
Commission further stated that it ``intend[ed] to monitor the ATSC 3.0 
marketplace,'' and would ``extend the substantially similar requirement 
if necessary.'' The substantially similar rule took effect on July 17, 
2018, and is set to expire on July 17, 2023, unless extended by the 
Commission.\10\ The Commission affirmed this decision in 2020, but 
stated that, approximately one year before the requirement is set to 
expire, it would seek comment on whether the rule should be extended 
based on marketplace conditions at that time.
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    \7\ We refer to this as the substantially similar rule. The 
substantially similar rule is independent of the requirement for 
Next Gen TV broadcasters to simulcast in 1.0 format.
    \8\ Such enhanced content or features that cannot reasonably be 
provided in ATSC 1.0 format include: targeted advertisements, 
``hyper-localized'' content (e.g., geo-targeted weather, targeted 
emergency alerts, and hyper-local news), programming features or 
improvements created for the 3.0 service (e.g., emergency alert 
``wake up'' ability and interactive programming features), enhanced 
formats made possible by 3.0 technology (e.g., 4K or HDR), and any 
personalization of programming performed by the viewer and at the 
viewer's discretion.
    \9\ We emphasize that the underlying requirement that a Next Gen 
TV station must simulcast in 1.0 format does not have a sunset date. 
In addition, none of the other aspects of the local simulcasting 
rules are set to expire, including those governing: simulcast 
arrangements and agreements; designated market area (DMA), and 
community of license coverage; and multichannel video programming 
distributor (MVPD) notices and consumer education.
    \10\ The local simulcasting rules took effect on July 17, 2018.
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    7. Requirement to comply with the ATSC A/322 standard. In 
authorizing use of the Next Gen TV broadcast transmission standard, the 
Commission in the First Next Gen TV Report and Order required 
compliance with only two parts of the ATSC 3.0 suite of standards: (1) 
ATSC A/321:2016 ``System Discovery & Signaling'' (A/321), which is the 
standard used to communicate the RF signal type that the ATSC 3.0 
signal will use; and (2) A/322:2016 ``Physical Layer Protocol'' (A/
322), which is the standard that defines the waveforms that ATSC 3.0 
signals may take.\11\ In requiring compliance with A/322, the 
Commission observed that ``device manufacturers and MVPDs may not be 
able to reliably predict what signal modulation a broadcaster is using 
unless broadcasters are required to follow A/322,'' at least with 
respect to their required primary programming stream. The Commission 
explained that ``[t]his uncertainty could cause manufacturers to 
inadvertently build equipment that cannot receive Next Gen TV 
broadcasts or could render MVPDs unable to receive and retransmit the 
signals of Next Gen TV stations. These outcomes would harm consumers.'' 
The Commission, however, decided that it was not appropriate at the 
time ``to require broadcasters to adhere to A/322

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indefinitely,'' explaining that ``the ATSC 3.0 standard could evolve, 
and stagnant Commission rules could prevent broadcasters from taking 
advantage of that evolution.'' The Commission thus determined that the 
requirement to comply with the A/322 standard would expire on March 6, 
2023, absent Commission action to extend it. In establishing a sunset 
for A/322 compliance, the Commission sought to ``balance [its] goals of 
protecting consumers while promoting innovation.'' The Commission 
affirmed this decision in 2020, but stated that, approximately one year 
before the requirement is set to expire, it would seek comment on 
whether the rule should be extended based on marketplace conditions at 
that time.
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    \11\ These two standards were incorporated by reference into the 
Commission's rules. The Commission applied the A/322 standard only 
to a Next Gen TV station's primary, free, OTA video programming 
stream.
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    8. Patent Licensing. In the First Next Gen TV Report and Order, the 
Commission observed that the ATSC, which developed the ATSC 3.0 
standard, requires patent owners to disclose that they hold relevant 
patents and to commit to licensing them on reasonable and non-
discriminatory (RAND) terms. Courts have found that a patentee's 
agreement with a standard-setting organization to provide RAND 
licensing created a contract enforceable by a third-party beneficiary. 
The Commission decided in 2017 that ``[w]ith no evidence of patent 
licensing issues, . . . it [was] premature to impose regulations on the 
private licensing marketplace.'' We note that in the context of the 
original DTV transition, the Commission similarly stated its 
expectation that the licensing of patents in DTV technology would be on 
RAND terms. The Commission also emphasized that if a problem with 
patent licensing arose and was brought to the Commission's attention, 
it would ``consider it and take appropriate action.'' Ultimately, 
however, the Commission never adopted any specific licensing terms or 
otherwise took action on these issues in the context of the DTV 
transition. In the case of ATSC 3.0 the Commission stated that it would 
``monitor how the marketplace handles patent royalties for essential 
patents.'' \12\
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    \12\ The Commission affirmed this decision in the Second Next 
Gen TV Report and Order, 85 FR 43478.
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III. Discussion

    9. As an initial matter, we seek comment on the state of the ATSC 
3.0 marketplace, including specifically information and data on 
broadcasters' present deployment of ATSC 3.0 service; current 
availability and pricing of ATSC 3.0 consumer television equipment; the 
number of over-the-air (OTA) television viewers currently watching ATSC 
3.0 broadcasts; whether any MVPDs are currently carrying or have plans 
to carry 3.0 signals; and how the 3.0 marketplace is handling patent 
royalties for essential patents in ATSC 3.0 technology. Next, we seek 
comment on whether we should retain the substantially similar 
requirement, which is set to expire in July 2023. Finally, we seek 
comment on whether we should retain the requirement that Next Gen TV 
broadcasters' primary video programming stream must comply with the 
ATSC A/322 standard, which is set to expire in March 2023, and, if so, 
for how long.

A. Review of ATSC 3.0 Marketplace

    10. First, we seek comment regarding the ATSC 3.0 marketplace. It 
has been more than four years since the Commission authorized Next Gen 
TV broadcasters to provide OTA broadcast ATSC 3.0 service on a 
voluntary, market-driven basis.\13\ During this time, dozens of 
broadcasters have voluntarily deployed ATSC 3.0 service to test its 
technical and economic viability as a DTV broadcast service. In the 
First Next Gen TV Report and Order, the Commission stated that it would 
``monitor the pace of the voluntary deployment of ATSC 3.0 both 
nationally and market-by-market, including the rollout of 3.0 service 
by television broadcasters, the penetration of ATSC 3.0-ready TV sets 
and other converter equipment, and the extent to which MVPDs have 
deployed 3.0 equipment.'' The Commission also stated that it would 
``monitor how the marketplace handles patent royalties for essential 
patents.'' Accordingly, we seek specific comment on five aspects of the 
deployment: (1) voluntary deployment of ATSC 3.0 service by 
broadcasters and the continued availability of ATSC 1.0 programming; 
(2) availability of ATSC 3.0 consumer TV sets and equipment; (3) 
consumer viewership of ATSC 3.0 signals; (4) MVPD carriage of ATSC 3.0 
signals; and (5) status of ATSC 3.0 patent licensing.
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    \13\ The Media Bureau completed revisions to the FCC Form 2100 
and began accepting ATSC 3.0 license applications through the 
Commission's Licensing and Management System (LMS) on May 28, 2019. 
Prior to this date, the Bureau continued to process requests to 
commence ATSC 3.0 market trials and product development under the 
experimental licensing rules.
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    11. As part of this review, we seek comment on whether broadcasters 
still consider ATSC 3.0 to be a trial technology and the extent to 
which broadcasters intend to fully transition to 3.0 at some point. Is 
the expectation still a uniform transition by all broadcasters at some 
future point? The Commission intended for broadcasters to operate in 
both 1.0 and 3.0 only for a ``temporary'' period of time. We seek 
comment on the appropriate length of time broadcasters should be 
required or allowed to operate in both 1.0 and 3.0. What is the impact 
on OTA viewers and MVPDs of not having a date certain 3.0 transition 
deadline? For example, without a certain transition date, are viewers 
and MVPDs able to prepare for their own transitions? We also seek 
comment on the ways in which broadcasters are educating consumers about 
the continued progress of the transition.
1. Broadcaster Deployment of ATSC 3.0 Service
    12. We seek comment and data on broadcasters' current and future 
deployment of ATSC 3.0 service. According to our licensing records, as 
of June 21, 2022, the Commission has licensed 306 broadcast television 
stations to provide ATSC 3.0 service. Based on our records, ATSC 3.0 
stations have been licensed to operate in 68 markets, though in some 
cases it may be a single low power television station. Furthermore, 
most markets with 3.0 deployments have a single 3.0 ``lighthouse'' 
facility licensed to provide ATSC 3.0 service. According to S&P Global, 
Next Gen TV now reaches nearly 66.3 million unique households, or about 
51.1% of total U.S. households. Given current deployments, is this an 
accurate estimate of the percentage of the U.S. population that could 
have access to at least one ATSC 3.0 broadcast signal if they had 3.0 
TV equipment? We seek comment on these data points, as well as 
additional data. In how many DMAs has ATSC 3.0 service actually been 
launched, and what percentage of viewers could receive ATSC 3.0 
programming if they had 3.0 equipment? In how many markets are 
broadcasters providing access to all of the ``Big-4'' networks (NBC, 
CBS, ABC, FOX) and what percentage of 3.0 viewers have access to such 
programming? In how many markets are broadcasters providing access to 
all of the ``Big-4'' networks and PBS programming and what percentage 
of 3.0 viewers can receive such programming? What other programming 
networks are available in 3.0 and in which markets? What other data 
should the Commission be tracking in order to monitor the state of the 
ATSC 3.0 transition, and how should it collect such information? Are 
existing Commission databases sufficient to track such information?
    13. We seek further information on the ATSC 3.0 broadcast rollout. 
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prior to the pandemic, the broadcast industry expected that ATSC 3.0 
service would be available in 61 markets by the end of 2020. To date, 
however, full-power broadcasters are licensed to provide ATSC 3.0 
service in only 54 markets. How, and to what extent, has the pandemic 
impacted overall ATSC 3.0 deployment? Early in the pandemic, some 
expected that the delays would not be significant. Given the length of 
the pandemic and its impact on supply chains, have those early 
estimates held? Have the related supply-chain disruptions had an impact 
on broadcasters' ability to secure necessary equipment? What other 
challenges have Next Gen TV broadcasters faced?\14\ What future 
challenges do they anticipate, if any? Has ATSC 3.0 met broadcasters', 
and the Commission's original expectations from a technical 
perspective? (For example, has ATSC 3.0 service met the Commission's 
original expectations of technical performance outlined in the First 
Next Gen TV Report and Order?) What have broadcasters learned so far in 
terms of the economic viability of ATSC 3.0 service, and how are they 
evaluating viability? What else have broadcasters learned from over 
four years of real-world experience with ATSC 3.0?
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    \14\ We note that the Commission recently issued an FNPRM in 
response to broadcasters' concerns about airing multicast streams on 
host stations.
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    14. What are broadcasters' plans for future voluntary ATSC 3.0 
deployment? For example, by what date do broadcasters expect that there 
will be some ATSC 3.0 service in all 210 markets, and when do they 
expect to be ready to transition entire markets to ATSC 3.0? To what 
extent are enhanced datacasting capabilities expected to help promote 
the transition to ATSC 3.0 and what, if any, services are already being 
offered? We also specifically seek comment from any broadcasters that 
do not currently have plans to voluntarily deploy ATSC 3.0 service. Do 
they have plans to transition at a later date? Why have they decided 
not to undertake ATSC 3.0 service, and what factors are most important 
to these stations as they plan for future services (be it in 1.0 or 
3.0)?
    15. Continuing Availability of Programming to Existing Viewers. We 
seek comment on the effectiveness of local simulcasting in ensuring 
continuity of OTA television service. Has local simulcasting worked as 
expected? To what extent, if any, have consumers experienced disruption 
or confusion as a result of the transition and simulcasting 
arrangements? Have any OTA viewers complained about problems related to 
1.0 simulcast service such as loss of access to service or quality of a 
station's signal? Have any viewers purchased 3.0 TV equipment because 
they stopped receiving a 1.0 simulcast signal? Are Next Gen TV 
stations' 1.0 simulcasts aired in HD format? Have any Next Gen TV 
stations that were previously broadcasting 1.0 service in HD changed to 
an SD format for their 1.0 simulcast service upon or after the 
deployment of 3.0 service? If so, why? To what extent and in what ways 
has the programming on Next Gen TV stations' 3.0 primary stream 
differed from that on their 1.0 primary stream?
    16. 3.0 Enhanced Content and Features. We seek comment on what 
types of enhanced content and features are currently being broadcast to 
3.0 viewers (both with and without internet service). The record 
established in the 2017 First Next Gen TV Report and Order reflected 
ATSC 3.0's potential to allow for ``a wide range of potential services 
now and in the future.'' ATSC 3.0 proponents said that ATSC 3.0 will 
enable delivery of Ultra High Definition (UHD) television, including 
images with high spatial resolution, wide color gamut, high dynamic 
range and high frame rate as well as advanced audio systems to provide 
consumers with more vivid pictures and sound. In addition, ATSC 3.0 
proponents said the new standard would ```allow broadcasters to offer 
exciting and innovative services,' including superior reception, mobile 
viewing capabilities, enhanced public safety capabilities, such as 
advanced emergency alerting capable of waking up sleeping devices to 
warn consumers of imminent emergencies, enhanced accessibility 
features, localized and/or personalized content, interactive 
educational children's content, and other enhanced features.'' To what 
extent are any of these enhanced content or features, such as enhanced 
accessibility features, currently being offered to viewers? If they are 
not currently available, when can viewers expect them to become 
available? What types of specific enhanced content and features are 
currently being provided? What types of enhanced content and features 
are expected to be launched in the near future, and what is the timing 
for such offerings? What offerings can be accessed by viewers who do 
not have wired or wireless broadband internet access?
    17. We seek comment in particular on the types of viewer data that 
broadcasters deploying ATSC 3.0 may collect and on the expected uses of 
such data. Will all 3.0 viewers be potentially subject to ATSC 3.0-
enabled viewer data collection, or does that capability apply only to 
those 3.0 viewers whose television receivers have an internet 
connection? What efforts are broadcasters taking to inform 3.0 viewers 
about the data that is being collected? Will 3.0 viewers have the 
ability to opt out of undesired 3.0 features, such as data collection 
and targeted advertising? Would limitations or regulations on the 
collection of user data by ATSC 3.0 broadcasters be in the public 
interest? Commenters should identify the authority on which the 
Commission might rely to impose such limitations or regulations.
2. Availability of ATSC 3.0 Consumer TV Equipment
    18. We seek comment on the current availability and pricing of TV 
sets with ATSC 3.0 tuners and other ATSC 3.0 consumer TV equipment 
(e.g., gateway devices, set-top boxes, and 3.0 to 1.0 converter devices 
such as dongles). According to recent press reports, the industry 
believes there is still ``a lot of work to be done'' to get 3.0 
equipment on the shelves and into the hands of consumers. This is 
unsurprising, since no television purchased before 2020 is capable of 
tuning ATSC 3.0 programming, and the first mass produced consumer 
converter device was not available until 2021. Even in 2022, analyst 
forecasts of TV sales suggest that only 11% of new televisions sold 
will have ATSC 3.0 tuners. We understand that about 70 models of TV 
sets with ATSC 3.0 tuners are now available from three manufacturers--
LG Electronics, Samsung, and Sony. Press reports suggest that the least 
expensive 3.0-compatible set is a mid-size TV that is consistently 
listed for more than $400. A fourth manufacturer, Hisense, recently 
announced that it will be releasing three 3.0-compatible sets this 
year, with the least expensive retailing for approximately $800. How 
many 3.0 TV sets have been sold in the U.S. to date? How does the 
pricing of currently available 3.0 TV sets compare to the overall 
market? To what extent are 3.0 tuners available, or expected to be 
available, in the lowest-cost models of TV sets? What other companies 
are manufacturing or are planning to manufacture 3.0 TV sets and other 
3.0 TV equipment? What challenges or impediments exist, if any, for 
manufacturers seeking to develop and manufacture 3.0 TV sets and other 
3.0 TV equipment? To what extent, if any, is patent licensing 
inhibiting the development of 3.0 TV sets or other 3.0 equipment by 
non-patent holders?

[[Page 40469]]

    19. We seek specific comment on the availability of low-cost 
consumer 3.0 to 1.0 set-top boxes or other converter devices, such as 
external tuners or dongles, that can make a legacy 1.0 TV set capable 
of receiving 3.0 signals. How many 3.0 converter devices have been sold 
in the U.S. to date? Where are such devices available for sale? Do all 
currently available converter devices require an internet connection, 
and if so are there plans to create devices that do not require 
internet access? What manufacturers are developing or have plans to 
develop ATSC 3.0 converter devices, particularly low-cost devices, and 
where will such devices be sold? When might such devices become 
available and at what prices? We believe the availability of low-cost 
3.0 converter devices will be critical for consumers who are not ready 
to replace their 1.0 TV sets. What is the price range that should be 
considered ``low-cost,'' and what is that range based on? The cheapest 
3.0 gateway device currently available for purchase, of which we are 
aware, is the ``HDHomeRun 4K'' device that can be purchased over the 
internet and retails for $199. We are not aware of any low-cost set-top 
boxes or converters (e.g., external tuners or dongles), or any 
converter devices that can be purchased offline in a ``brick and 
mortar'' location. What (if anything) can the Commission do to foster 
the development of such low-cost 3.0 converter devices? Do broadcasters 
have any plans to distribute or subsidize such devices as a means of 
facilitating the deployment of ATSC 3.0?
3. OTA TV Viewers Watching 3.0 Broadcasts
    20. We seek comment and data on how many OTA TV viewers are 
currently watching 3.0 broadcasts. Are there any current sources for 
this information? Are any companies able or planning to track this data 
as the transition progresses? If so, how? How many OTA TV households 
have a TV set with (or attached to) a 3.0 tuner? Is the number of 3.0 
TV sets or other 3.0 TV equipment sold with ATSC 3.0 tuners a good 
indicator of consumer viewing trends for ATSC 3.0 service? Is there 
evidence that consumers are currently using the ATSC 3.0 tuner featured 
in these sets? Are OTA TV viewers and other consumers aware of the 
broadcasters' voluntary transition to 3.0 and how it may affect them 
now and in the future?
    21. We seek comment on how broadcasters are educating OTA TV 
viewers and other consumers about the broadcasters' voluntary 
transition to 3.0 and how it may affect them now and in the future. How 
effective have the required on-air notices been in informing OTA 
viewers about the 3.0 transition? Following the transitions of 
individual stations, have broadcasters received any complaints or 
questions? What (if any) additional, voluntary education efforts are 
currently being employed by broadcasters, manufacturers and/or 
retailers? Other than the ``NEXTGEN TV'' branding noted above, are 
manufacturers and retailers providing information about the 3.0 
transition to consumers before they buy new TV equipment?
4. MVPD Carriage of 3.0 Signals
    22. We seek comment and data on whether any MVPDs are currently 
carrying or have plans to carry 3.0 signals. We note that MVPDs are not 
required to carry 3.0 signals but may do so voluntarily if they obtain 
retransmission consent from the Next Gen TV broadcast station. We seek 
comment about the technical challenges, if any, that MVPDs face in 
carrying 3.0 signals. Is there equipment available that will allow 
MVPDs to receive 3.0 signals and redistribute them to their 
subscribers? We seek comment on the coordination efforts between Next 
Gen TV broadcasters and MVPDs to resolve any existing technical issues, 
including the status of any relevant ATSC 3.0 working groups.\15\ We 
observe that ATSC has issued a recommended practice, ATSC A/370: 
``Conversion of ATSC 3.0 Services for Redistribution.'' Does this 
document resolve the question of how MVPDs can receive 3.0 broadcast 
signals and convert them to 1.0 or some other format for redistribution 
to their subscribers? Is ATSC still working on the issue of how 
broadcasters can deliver 3.0 services to MVPDs for direct 
redistribution? Which enhanced features available to OTA 3.0 viewers do 
MVPDs expect to be able to pass through to their subscribers now or in 
the future? We also seek comment on any other issues related to MVPDs' 
ability to carry and transmit ATSC 3.0 signals.
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    \15\ In the 2017 First Next Gen TV Report and Order, the 
Commission observed that an ATSC working group called TG3/S37, the 
``Specialist Group on Conversion and Redistribution of ATSC 3.0 
Service,'' was still working to resolve technical issues in this 
regard. What is the status of this working group and the resolution 
of these issues?
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5. RAND Licensing of 3.0 Patents
    23. We seek comment on how the 3.0 marketplace is handling patent 
royalties for essential patents in ATSC 3.0 technology. As noted above, 
ATSC requires patentees to make essential patents available on RAND 
terms. Are holders of essential patents in ATSC 3.0 technologies 
licensing such patents on RAND terms? How have the available licensing 
terms impacted current and potential participants in the 3.0 
marketplace, the deployment of 3.0 services, and the availability of 
consumer devices? The Commission previously found that it would be 
premature to impose regulations on 3.0 patent licensing in the absence 
of any issues. Have there been any developments that would warrant such 
Commission action at this time and how should the Commission continue 
to monitor this issue in the future? If so, what precisely should such 
a rule require and upon what authority would the rule be based? What 
are the advantages, disadvantages, and legal limitations of such a 
requirement? Finally, we observe that a ``ATSC 3.0 Patent Portfolio 
License'' is being offered by MPEG LA, LLC. We seek more information 
and comment about this portfolio license. Is this portfolio license 
being made available on RAND terms? What essential patents, if any, are 
not included in this portfolio license?

B. Substantially Similar Rule

    24. We seek comment on whether we should retain the substantially 
similar rule or permit it to sunset in 2023.\16\ As the Commission 
stated when adopting the requirement, the purpose of the rule, in 
conjunction with the underlying requirement to simulcast in 1.0, is to 
protect 1.0 viewers from losing access to a Next Gen TV station's 
programming when that station transitions its facility to 3.0. While 
the underlying requirement that a Next Gen TV broadcaster must air a 
1.0 signal (when deploying 3.0) ensures 1.0 viewers continue to receive 
some free OTA TV service during the transition, the substantially 
similar rule ensures that 1.0 viewers actually receive the same primary 
video programming as that aired on the 3.0 channel. As the Commission 
explained in the 2017 First Next Gen TV Report and Order, ``[t]o ensure 
that viewers are protected, it is important not only to require that 
television broadcasters continue to broadcast in the current ATSC 1.0 
standard while ATSC 3.0 is being deployed, but also that they continue 
to air in ATSC 1.0 format the programming that viewers most want and 
expect to receive. We seek to ensure that

[[Page 40470]]

broadcasters air their most popular, widely-viewed programming on their 
1.0 simulcast channels so that viewers are not forced to purchase 3.0 
capable equipment simply to continue to receive this programming rather 
than because they find the ATSC 3.0 technology particularly 
attractive.''
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    \16\ We note that, even without an expiration date, the 
substantially similar rule, which is tied to the underlying 
requirement to simulcast in 1.0, is intended to be temporary and 
would in any event be eliminated when the transition to 3.0 is 
complete.
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    25. To what extent would allowing the sunset of the substantially 
similar rule undermine the 1.0 simulcast rule? For example, without the 
substantially similar rule, how can the Commission ensure that 1.0 
viewers are able to keep watching the same programming they watch 
today, as well as any new programming offerings on a broadcaster's 
primary channel that can be offered in 1.0 format? The voluntary 
transition to 3.0 is intended to ``minimize[e] the impact on, and costs 
to, consumers and other industry stakeholders.'' Yet many consumers may 
not want or be financially able to purchase new TV equipment with 3.0 
tuners in the current market. Would eliminating the rule make the 
underlying requirement to simulcast in 1.0 less effective or 
ineffective? In the absence of the substantially similar rule, how 
would the Commission determine whether a 1.0 stream was a ``simulcast'' 
of a specific 3.0 stream when enforcing the underlying requirement to 
simulcast in 1.0?
    26. While broadcasters have incentives to provide the programming 
their viewers want, after making significant investments in ATSC 3.0 
technology they may also have incentives to favor their ATSC 3.0 
offerings. For example, without a requirement to make programming 
substantially similar, Next Gen TV broadcasters would be free to 
provide the most desirable programming only to those viewers with 3.0 
TV equipment. This could create two different tiers of free, OTA 
television service.\17\ Advertising dollars, and thus spending on 
programming, could flow primarily to the 3.0 ``tier'' in such a 
scenario, potentially widening the quality gap between the two tiers. 
Given these concerns, are Next Gen TV broadcasters' financial 
incentives sufficient to ensure that all 1.0 viewers retain access to 
all primary video programming that can be offered in 1.0 format? How 
might broadcasters' financial incentives change as the 3.0 transition 
progresses? How could the development of ``tiered'' programming 
disproportionately impact consumers with limited means and other 
vulnerable consumers (such as seniors)? In a voluntary, market-based 
transition, what are Next Gen TV broadcasters' obligations to 1.0 
viewers that choose not to transition to 3.0? We seek comment on these 
questions and issues.
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    \17\ We recognize that two tiers of OTA TV service may already 
occur to a lesser extent. Due to inevitable 1.0 capacity constraints 
as the transition progresses, the Commission has afforded Next Gen 
TV stations with the flexibility to air 1.0 primary programming in 
SD, even if the station was previously broadcasting it in HD. 
Similarly, the Commission did not require that Next Gen TV stations 
air multicast streams in 1.0 format. In contrast to these 
situations, 1.0 capacity constraints would not seem to be hindering 
the provision of substantially similar programming. Next Gen TV 
broadcasters are not required to simulcast programming that cannot 
be aired in 1.0 format.
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    27. Have marketplace developments to date in any way reduced or 
eliminated the need for the substantially similar rule? What 
marketplace conditions are relevant to this question, independent of 
the underlying requirement to simulcast in 1.0? \18\ While we are 
seeking detailed information about the state of the ATSC 3.0 
marketplace in this proceeding, the information we have already shows 
that ATSC 3.0 deployment and consumer adoption remain in the early 
stages. When 3.0 viewership increases (reducing reliance on 1.0 
service) and more affordable 3.0 TV equipment become available in the 
marketplace, will the need for the substantially similar rule remain? 
How, if at all, will any such need be affected by the potential for 
shifting financial incentives as the transition progresses? We seek 
comment on these questions and issues.
---------------------------------------------------------------------------

    \18\ We observe that certain marketplace conditions will factor 
into our analysis about how long the underlying requirement to 
simulcast in 1.0 is needed.
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    28. We also seek comment on whether the substantially similar rule 
is currently impeding innovations in broadcast programming and, if so, 
how? Is it likely that the rule will hinder 3.0 programming innovations 
in the near future? If so, how? Should any such innovations outweigh 
the protections afforded to 1.0 viewers by the rule? We observe that 
the substantially similar rule already affords significant flexibility 
for broadcasters to innovate and experiment with new, innovative 
programming features using Next Gen TV technology in that it does not 
require Next Gen TV broadcasters to duplicate enhanced content or 
features that cannot reasonably be provided in the 1.0 format, and does 
not require any degree of simulcasting on any stream other than the 
primary stream.\19\ Does the requirement nonetheless pose any 
impediment to innovation in broadcast programming and, if so, how? Are 
such impediments imminent or currently theoretical? What innovations 
that are currently being aired or are in development would be hindered 
by the rule, if any? We seek specific comment on what types of 
programming Next Gen TV broadcasters would like to provide only in 3.0 
and, to the extent such programming can (as a technical matter) be 
provided in 1.0 format, why such programming should not have to be 
provided in 1.0 format? To the extent an individual Next Gen TV 
broadcaster may need more flexibility than the rule allows, would 
targeted waivers be more appropriate than sunsetting the substantially 
similar requirement? \20\ We seek comment on these questions and 
issues.
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    \19\ Next Gen TV broadcasters do not have to duplicate enhanced 
content or features that cannot reasonably be provided in the 1.0 
format. This includes: ``hyper-localized'' content (e.g., geo-
targeted weather, targeted emergency alerts, and hyper-local news), 
programming features or improvements created for the 3.0 service 
(e.g., emergency alert ``wake up'' ability and interactive 
programming features), enhanced formats made possible by 3.0 
technology (e.g., 4K or HDR), and any personalization of programming 
performed by the viewer and at the viewer's discretion.
    \20\ Notably, the Commission has stated with respect to requests 
for waiver of the requirement to simulcast that ``[it would] look 
favorably on a waiver applicant choosing to provide ATSC 3.0 
converter devices at no cost or low cost to over-the-air households 
located within its community of license which will no longer receive 
the station's ATSC 1.0 signal as a means to minimize the impact of 
not simulcasting on viewers.''
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    29. Finally, we seek comment about any other advantages or 
disadvantages associated with the sunset of the substantially similar 
rule, and if we do decide to retain it, for how long? How would the 
sunset of the rule impact MVPDs, including small MVPDs, particularly 
given that the 1.0 simulcast signal remains the relevant signal for 
carriage purposes? \21\ What is the impact on small broadcasters of 
requiring continued compliance with the substantially similar rule? 
Finally, we note that because the substantially similar rule, like the 
underlying requirement to simulcast in 1.0, will be eliminated when the 
transition to 3.0 is complete, the timing of the ultimate ``sunset'' of 
this requirement is very much in the hands of the broadcast industry. 
If the rule is retained, should we consider extending the substantially 
similar requirement for a particular term, or retain it for as long as 
the underlying requirement to simulcast in

[[Page 40471]]

1.0 remains? If for a term, what would be an appropriate benchmark? We 
seek comment on these questions and issues.
---------------------------------------------------------------------------

    \21\ We note that small or rural MVPDs are more likely to rely 
exclusively on OTA delivery of TV signals. While MVPDs that rely on 
OTA delivery could mitigate signal quality issues by obtaining 
delivery through alternate means, such as fiber, DBS transport, or 
reception and transcoding/down conversion of the ATSC 3.0 signal, 
such methods may require significant expenditures that small MVPDs 
in particular are less able to afford.
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C. Requirement To Comply With the ATSC A/322 Standard

    30. We seek comment on whether we should retain the requirement 
that Next Gen TV broadcasters' primary video programming stream must 
comply with the ATSC A/322 standard and, if so, for how long. If we 
retain the requirement, should we apply a different sunset date or is 
it needed on an ongoing basis? The purpose of this requirement is to 
provide certainty to consumers, television receiver manufacturers, and 
MVPDs that 3.0 TV sets or other 3.0 TV equipment will be able to 
receive all 3.0 primary broadcast signals. What would be the impact on 
consumers, television receiver manufacturers, and MVPDs if this 
requirement were to sunset? If we do not require compliance with the 
ATSC A/322 standard, how can we ensure that 3.0 TV sets and other 3.0 
TV equipment will be able to receive all 3.0 primary broadcast signals? 
What would be the potential impact, if any, of eliminating the 
requirement on consumers, television manufacturers, and MVPDs? Would 
the sunset of this requirement jeopardize the provision of ATSC 3.0 
service as a free and universally available digital broadcast 
television service? Have marketplace developments since 2017 reduced or 
eliminated the need for mandatory compliance with the ATSC A/322 
standard? What marketplace conditions are relevant to this question?
    31. In 2017, broadcasters acknowledged that ``adopting the full 
physical layer of the Next Gen standard, including A/322'' may ``ensure 
that consumer electronics manufacturers can build television receivers 
with confidence.'' Is this no longer the case? Is A/322 no longer 
necessary to provide such certainty? Is the A/322 standard currently 
impeding broadcast innovations? If so, how? Does the need to facilitate 
any such innovations outweigh the protections the rule affords to 
consumers, television receiver manufacturers and MVPDs? Might retention 
of the A/322 standard--which applies only to the primary broadcast 
stream--hinder broadcast innovation in the future? If so, how? Do 
broadcasters merely hope to use methods that are likely to be adopted 
in future versions of A/322, or do they contemplate the use of a 
physical layer standard that ATSC would never incorporate into A/322? 
What is the impact on small broadcasters of requiring continued 
compliance with the A/322 standard? What could be the impact on small 
television receiver manufacturers and small MVPDs if the requirement is 
allowed to sunset? We seek comment on these questions.
    32. Finally, we observe that ATSC has updated the A/322 standard 
since we mandated its use in 2017. It appears, however, that the most 
recent 2021 version of the A/322 standard makes only ministerial 
changes to the standard and contains no substantive changes. We seek 
comment on this observation as well as whether it is necessary or 
advisable to incorporate into our rules the 2021 version of the A/322 
standard to the extent that the requirement is retained.
    33. Digital Equity and Inclusion. The Commission, as part of its 
continuing effort to advance digital equity for all,\22\ including 
people of color, persons with disabilities, persons who live in rural 
or Tribal areas, and others who are or have been historically 
underserved, marginalized, or adversely affected by persistent poverty 
or inequality, invites comment on any equity-related considerations 
\23\ and benefits (if any) that may be associated with the proposals 
and issues discussed herein. Specifically, we seek comment on how our 
proposals may promote or inhibit advances in diversity, equity, 
inclusion, and accessibility, as well the scope of the Commission's 
relevant legal authority.
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    \22\ Section 1 of the Communications Act of 1934 as amended 
provides that the FCC ``regulat[es] interstate and foreign commerce 
in communication by wire and radio so as to make [such service] 
available, so far as possible, to all the people of the United 
States, without discrimination on the basis of race, color, 
religion, national origin, or sex.'' 47 U.S.C. 151.
    \23\ The term ``equity'' is used here consistent with Executive 
Order 13985 as the consistent and systematic fair, just, and 
impartial treatment of all individuals, including individuals who 
belong to underserved communities that have been denied such 
treatment, such as Black, Latino, and Indigenous and Native American 
persons, Asian Americans and Pacific Islanders and other persons of 
color; members of religious minorities; lesbian, gay, bisexual, 
transgender, and queer (LGBTQ+) persons; persons with disabilities; 
persons who live in rural areas; and persons otherwise adversely 
affected by persistent poverty or inequality. See Exec. Order No. 
13985, 86 FR 7009, Executive Order on Advancing Racial Equity and 
Support for Underserved Communities Through the Federal Government 
(January 20, 2021).
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IV. Procedural Matters

A. Initial RFA Analysis

    34. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\24\ the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies proposed in 
this Third Further Notice of Proposed Rulemaking (NPRM). Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
on the FNPRM provided on the first page of the FNPRM. The Commission 
will send a copy of this entire FNPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration 
(SBA).\25\
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    \24\ 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, was amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \25\ 5 U.S.C. 603(a).
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1. Need for, and Objectives of, the Proposed Rule Changes
    35. In this Third Further Notice of Proposed Rulemaking (FNPRM), 
the Commission considers and seeks comment on the state of the Next Gen 
TV transition and on the scheduled sunsets of two rules adopted in the 
First Next Gen TV Report and Order. In that decision, the Commission 
authorized broadcasters to use the ATSC 3.0 standard and adopted rules 
governing the deployment of 3.0 service, including two which are 
scheduled to sunset absent further action. The Commission noted that it 
would monitor the 3.0 transition and approximately one year before the 
scheduled sunsets, it would seek comment on whether marketplace 
conditions warranted extending these requirements. As part of our 
assessment, we review and seek comment on the progress of Next Gen TV 
broadcasters' voluntary, market-driven deployment of ATSC 3.0 service 
and the current state of the ATSC 3.0 marketplace, including whether 
holders of essential patents for the ATSC 3.0 standards are licensing 
such patents on reasonable and non-discriminatory (RAND) terms and if a 
Commission rule requiring 3.0 patent licensing on RAND terms would 
provide benefits to consumers and potential participants in the 3.0 
marketplace. Next, the Commission considers whether to retain the rule 
requiring that a Next Gen TV station's ATSC 1.0 simulcast primary video 
programming stream be substantially similar to its 3.0 primary 
programming stream. This rule is scheduled to sunset in July 2023. 
Finally, the Commission considers whether to retain the requirement 
that a Next Gen TV station comply with the ATSC A/322. This rule is 
also scheduled to sunset in March 2023.
2. Legal Basis
    36. The proposed action is authorized pursuant to sections 1, 4, 7, 
301, 303, 307, 308, 309, 316, 319, 325(b), 336,

[[Page 40472]]

338, 399b, 403, 534, and 535 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154, 157, 301, 303, 307, 308, 309, 316, 325(b), 
336, 338, 399b, 403, 534, and 535.
3. Description and Estimate of the Number of Small Entities To Which 
the Proposed Rules Will Apply
    37. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA. The rules 
proposed herein will directly affect small television and radio 
broadcast stations. Below, we provide a description of these small 
entities, as well as an estimate of the number of such small entities, 
where feasible.
    38. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired communications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies. Establishments in this industry use the wired 
telecommunications network facilities that they operate to provide a 
variety of services, such as wired telephony services, including VoIP 
services, wired (cable) audio and video programming distribution, and 
wired broadband internet services. By exception, establishments 
providing satellite television distribution services using facilities 
and infrastructure that they operate are included in this industry. 
Wired Telecommunications Carriers are also referred to as wireline 
carriers or fixed local service providers.
    39. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms that operated in this industry for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. 
Additionally, based on Commission data in the 2021 Universal Service 
Monitoring Report, as of December 31, 2020, there were 5,183 providers 
that reported they were engaged in the provision of fixed local 
services. Of these providers, the Commission estimates that 4,737 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    40. Cable Companies and Systems (Rate Regulation). The Commission 
has developed its own small business size standard for the purpose of 
cable rate regulation. Under the Commission's rules, a ``small cable 
company'' is one serving 400,000 or fewer subscribers nationwide. Based 
on industry data, there are about 420 cable companies in the U.S. Of 
these, only seven have more than 400,000 subscribers. In addition, 
under the Commission's rules, a ``small system'' is a cable system 
serving 15,000 or fewer subscribers. Based on industry data, there are 
about 4,139 cable systems (headends) in the U.S. Of these, about 639 
have more than 15,000 subscribers. Accordingly, the Commission 
estimates that the majority of cable companies and cable systems are 
small.
    41. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, contains a size standard for a 
``small cable operator,'' which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate fewer than one percent of 
all subscribers in the United States and is not affiliated with any 
entity or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' For purposes of the Telecom Act Standard, the 
Commission determined that a cable system operator that serves fewer 
than 677,000 subscribers, either directly or through affiliates, will 
meet the definition of a small cable operator based on the cable 
subscriber count established in a 2001 Public Notice. Based on industry 
data, only six cable system operators have more than 677,000 
subscribers. Accordingly, the Commission estimates that the majority of 
cable system operators are small under this size standard. We note 
however, that the Commission neither requests nor collects information 
on whether cable system operators are affiliated with entities whose 
gross annual revenues exceed $250 million. Therefore, we are unable at 
this time to estimate with greater precision the number of cable system 
operators that would qualify as small cable operators under the 
definition in the Communications Act.
    42. Direct Broadcast Satellite (``DBS'') Service. DBS service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic ``dish'' antenna 
at the subscriber's location. DBS is included in the Wired 
Telecommunications Carriers industry which comprises establishments 
primarily engaged in operating and/or providing access to transmission 
facilities and infrastructure that they own and/or lease for the 
transmission of voice, data, text, sound, and video using wired 
telecommunications networks. Transmission facilities may be based on a 
single technology or combination of technologies. Establishments in 
this industry use the wired telecommunications network facilities that 
they operate to provide a variety of services, such as wired telephony 
services, including VoIP services, wired (cable) audio and video 
programming distribution; and wired broadband internet services. By 
exception, establishments providing satellite television distribution 
services using facilities and infrastructure that they operate are 
included in this industry.
    43. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that 3,054 
firms operated in this industry for the entire year. Of this number, 
2,964 firms operated with fewer than 250 employees. Based on this data, 
the majority of firms in this industry can be considered small under 
the SBA small business size standard. According to Commission data 
however, only two entities provide DBS service--DIRECTV (owned by AT&T) 
and DISH Network, which require a great deal of capital for operation. 
DIRECTV and DISH Network both exceed the SBA size standard for 
classification as a small business. Therefore, we must conclude based 
on internally developed Commission data, in general DBS service is 
provided only by large firms.
    44. Satellite Master Antenna Television (SMATV) Systems, also known 
as Private Cable Operators (PCOs). SMATV systems or PCOs are video 
distribution facilities that use closed transmission paths without 
using any public right-of-way. They acquire video programming and 
distribute it via terrestrial wiring in urban and suburban multiple 
dwelling units such as apartments and condominiums, and commercial 
multiple tenant units such as hotels and office buildings. SMATV 
systems or PCOs are included in the Wired Telecommunications Carriers' 
industry which includes wireline

[[Page 40473]]

telecommunications businesses. The SBA small business size standard for 
Wired Telecommunications Carriers classifies firms having 1,500 or 
fewer employees as small. U.S. Census Bureau data for 2017 show that 
there were 3,054 firms in this industry that operated for the entire 
year. Of this total, 2,964 firms operated with fewer than 250 
employees. Thus under the SBA size standard, the majority of firms in 
this industry can be considered small.
    45. Home Satellite Dish (HSD) Service. HSD or the large dish 
segment of the satellite industry is the original satellite-to-home 
service offered to consumers and involves the home reception of signals 
transmitted by satellites operating generally in the C-band frequency. 
Unlike DBS, which uses small dishes, HSD antennas are between four and 
eight feet in diameter and can receive a wide range of unscrambled 
(free) programming and scrambled programming purchased from program 
packagers that are licensed to facilitate subscribers' receipt of video 
programming. Because HSD provides subscription services, HSD falls 
within the industry category of Wired Telecommunications Carriers. The 
SBA small business size standard for Wired Telecommunications Carriers 
classifies firms having 1,500 or fewer employees as small. U.S. Census 
Bureau data for 2017 show that there were 3,054 firms that operated for 
the entire year. Of this total, 2,964 firms operated with fewer than 
250 employees. Thus, under the SBA size standard, the majority of firms 
in this industry can be considered small.
    46. Open Video Services (OVS). The open video system (OVS) 
framework was established in 1996 and is one of four statutorily 
recognized options for the provision of video programming services by 
local exchange carriers. The OVS framework provides opportunities for 
the distribution of video programming other than through cable systems. 
OVS operators provide subscription services and therefore fall within 
the SBA small business size standard for the cable services industry, 
which is ``Wired Telecommunications Carriers.'' The SBA small business 
size standard for this industry classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms in this industry that operated for the entire year. Of 
this total, 2,964 firms operated with fewer than 250 employees. Thus, 
under the SBA size standard the majority of firms in this industry can 
be considered small. Additionally, we note that the Commission has 
certified some OVS operators who are now providing service and 
broadband service providers (BSPs) are currently the only significant 
holders of OVS certifications or local OVS franchises. The Commission 
does not have financial or employment information for the entities 
authorized to provide OVS however, the Commission believes some of the 
OVS operators may qualify as small entities.
    47. Wireless Cable Systems--Broadband Radio Service and Educational 
Broadband Service. Broadband Radio Service systems, previously referred 
to as Multipoint Distribution Service (MDS) and Multichannel Multipoint 
Distribution Service (MMDS) systems, and ``wireless cable,'' transmit 
video programming to subscribers and provide two-way high speed data 
operations using the microwave frequencies of the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS) (previously 
referred to as the Instructional Television Fixed Service (ITFS)). 
Wireless cable operators that use spectrum in the BRS often 
supplemented with leased channels from the EBS, provide a competitive 
alternative to wired cable and other multichannel video programming 
distributors. Wireless cable programming to subscribers resembles cable 
television, but instead of coaxial cable, wireless cable uses microwave 
channels.
    48. In light of the use of wireless frequencies by BRS and EBS 
services, the closest industry with a SBA small business size standard 
applicable to these services is Wireless Telecommunications Carriers 
(except Satellite). The SBA small business size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    49. According to Commission data as December 2021, there were 
approximately 5,869 active BRS and EBS licenses. The Commission's small 
business size standards with respect to BRS involves eligibility for 
bidding credits and installment payments in the auction of licenses for 
these services. For the auction of BRS licenses, the Commission adopted 
criteria for three groups of small businesses. A very small business is 
an entity that, together with its affiliates and controlling interests, 
has average annual gross revenues exceed $3 million and did not exceed 
$15 million for the preceding three years, a small business is an 
entity that, together with its affiliates and controlling interests, 
has average gross revenues exceed $15 million and did not exceed $40 
million for the preceding three years, and an entrepreneur is an entity 
that, together with its affiliates and controlling interests, has 
average gross revenues not exceeding $3 million for the preceding three 
years. Of the ten winning bidders for BRS licenses, two bidders 
claiming the small business status won 4 licenses, one bidder claiming 
the very small business status won three licenses and two bidders 
claiming entrepreneur status won six licenses. One of the winning 
bidders claiming a small business status classification in the BRS 
license auction has an active licenses as of December 2021.
    50. The Commission's small business size standards for EBS define a 
small business as an entity that, together with its affiliates, its 
controlling interests and the affiliates of its controlling interests, 
has average gross revenues that are not more than $55 million for the 
preceding five (5) years, and a very small business is an entity that, 
together with its affiliates, its controlling interests and the 
affiliates of its controlling interests, has average gross revenues 
that are not more than $20 million for the preceding five (5) years. In 
frequency bands where licenses were subject to auction, the Commission 
notes that as a general matter, the number of winning bidders that 
qualify as small businesses at the close of an auction does not 
necessarily represent the number of small businesses currently in 
service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    51. Incumbent Local Exchange Carriers (ILECs). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange carriers. Wired 
Telecommunications Carriers is the closest industry with a SBA small 
business size standard. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for

[[Page 40474]]

2017 show that there were 3,054 firms in this industry that operated 
for the entire year. Of this number, 2,964 firms operated with fewer 
than 250 employees. Additionally, based on Commission data in the 2021 
Universal Service Monitoring Report, as of December 31, 2020, there 
were 1,227 providers that reported they were incumbent local exchange 
service providers. Of these providers, the Commission estimates that 
929 providers have 1,500 or fewer employees. Consequently, using the 
SBA's small business size standard, the Commission estimates that the 
majority of incumbent local exchange carriers can be considered small 
entities.
    52. Competitive Local Exchange Carriers (CLECs). Neither the 
Commission nor the SBA has developed a size standard for small 
businesses specifically applicable to local exchange services. 
Providers of these services include several types of competitive local 
exchange service providers. Wired Telecommunications Carriers is the 
closest industry with a SBA small business size standard. The SBA small 
business size standard for Wired Telecommunications Carriers classifies 
firms having 1,500 or fewer employees as small. U.S. Census Bureau data 
for 2017 show that there were 3,054 firms that operated in this 
industry for the entire year. Of this number, 2,964 firms operated with 
fewer than 250 employees. Additionally, based on Commission data in the 
2021 Universal Service Monitoring Report, as of December 31, 2020, 
there were 3,956 providers that reported they were competitive local 
exchange service providers. Of these providers, the Commission 
estimates that 3,808 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
    53. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. This industry comprises establishments 
primarily engaged in manufacturing radio and television broadcast and 
wireless communications equipment. Examples of products made by these 
establishments are: transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment. The SBA small business size standard for this 
industry classifies businesses having 1,250 employees or less as small. 
U.S. Census Bureau data for 2017 show that there were 656 firms in this 
industry that operated for the entire year. Of this number, 624 firms 
had fewer than 250 employees. Thus, under the SBA size standard, the 
majority of firms in this industry can be considered small.
    54. Audio and Video Equipment Manufacturing. This industry 
comprises establishments primarily engaged in manufacturing electronic 
audio and video equipment for home entertainment, motor vehicles, and 
public address and musical instrument amplification. Examples of 
products made by these establishments are video cassette recorders, 
televisions, stereo equipment, speaker systems, household-type video 
cameras, jukeboxes, and amplifiers for musical instruments and public 
address systems. The SBA small business size standard for this industry 
classifies firms with 750 employees or less as small. According to 2017 
U.S. Census Bureau data, 464 firms in this industry operated that year. 
Of this number, 399 firms operated with less than 250 employees. Based 
on this data and the associated SBA size standard, we conclude that the 
majority of firms in this industry are small.
    55. Television Broadcasting. This industry is comprised of 
``establishments primarily engaged in broadcasting images together with 
sound.'' These establishments operate television broadcast studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in turn 
broadcast the programs to the public on a predetermined schedule. 
Programming may originate in their own studio, from an affiliated 
network, or from external sources. The SBA small business size standard 
for this industry classifies businesses having $41.5 million or less in 
annual receipts as small. 2017 U.S. Census Bureau data indicate that 
744 firms in this industry operated for the entire year. Of that 
number, 657 firms had revenue of less than $25,000,000. Based on this 
data we estimate that the majority of television broadcasters are small 
entities under the SBA small business size standard.
    56. The Commission estimates that as of March 2022, there were 
1,373 licensed commercial television stations. Of this total, 1,280 
stations (or 93.2 percent) had revenues of $41.5 million or less in 
2021, according to Commission staff review of the BIA Kelsey Inc. Media 
Access Pro Television Database (BIA) on June 1, 2022, and therefore 
these licensees qualify as small entities under the SBA definition. In 
addition, the Commission estimates as of March 2022, there were 384 
licensed noncommercial educational (NCE) television stations, 383 Class 
A TV stations, 1,840 LPTV stations and 3,231 TV translator stations. 
The Commission however does not compile, and otherwise does not have 
access to financial information for these television broadcast stations 
that would permit it to determine how many of these stations qualify as 
small entities under the SBA small business size standard. 
Nevertheless, given the SBA's large annual receipts threshold for this 
industry and the nature of these television station licensees, we 
presume that all of these entities qualify as small entities under the 
above SBA small business size standard.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    57. The FNPRM considers whether to retain two existing compliance 
requirements, both of which are scheduled to expire in 2023. The FNPRM 
does not propose any new reporting or recordkeeping requirements.
    58. Substantially Similar Rule. The FNPRM considers whether to 
retain the ``substantially similar'' rule. This rule requires that the 
programming aired on a Next Gen TV station's ATSC 1.0 simulcast channel 
be ``substantially similar'' to that of the primary video programming 
stream on the ATSC 3.0 channel. This means that the programming must be 
the same, except for programming features that are based on the 
enhanced capabilities of ATSC 3.0, including targeted advertisements, 
and promotions for upcoming programs.
    59. Requirement to comply with the ATSC A/322 standard. The FNPRM 
considers whether to retain the requirement to comply with the ATSC A/
322 standard. In authorizing use of the Next Gen TV broadcast 
transmission standard, the Commission in the First Next Gen TV Report 
and Order required compliance with only two parts of the ATSC 3.0 suite 
of standards: (1) ATSC A/321:2016 ``System Discovery & Signaling'' (A/
321), which is the standard used to communicate the RF signal type that 
the ATSC 3.0 signal will use; and (2) A/322:2016 ``Physical Layer 
Protocol'' (A/322), which is the standard that defines the waveforms 
that ATSC 3.0 signals may take. The requirement to comply with A/321 
does not have a sunset date but the requirement to comply with A/322 
will expire in 2023 unless the Commission takes action to extend it.

[[Page 40475]]

5. Steps Taken To Minimize Significant Impact on Small Entities and 
Significant Alternatives Considered
    60. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
the establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    61. The Commission has authorized television broadcasters to use 
the Next Gen TV (ATSC 3.0) standard on a voluntary, market-driven 
basis. As observed in the Final Regulatory Flexibility Analysis of the 
2017 First Next Gen TV Report and Order, this means that broadcasters 
decide whether (and if so when) to deploy ATSC 3.0 service and bear the 
costs associated with such deployment. The substantially similar 
requirement and the requirement to comply with A/322 only apply to TV 
broadcast stations that voluntarily choose to implement the Next Gen TV 
(ATSC 3.0) standard. Because the decision to deploy ATSC 3.0 service is 
voluntary, broadcasters, including small entities, do not need to 
undertake any costs or burdens associated with ATSC 3.0 service unless 
they choose to do so. Accordingly, we believe that should the 
Commission decide to retain either or both of these requirements (i.e., 
the substantially similar rule and the A/322 standard) that they would 
not impose a significant economic impact on small entities. We seek 
comment on this tentative conclusion. We also seek comment on the 
impact of these rules on small entities.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    62. None.

B. Initial Paperwork Reduction Act Analysis

    63. This document does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA).\26\ 
In addition, therefore, it does not contain any new or modified 
information collection burden for small business concerns with fewer 
than 25 employees, pursuant to the Small Business Paperwork Relief Act 
of 2002.\27\
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    \26\ The Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13, 109 Stat 163 (1995) (codified in chapter 35 of title 44 U.S.C.).
    \27\ The Small Business Paperwork Relief Act of 2002 (SBPRA), 
Public Law 107-198, 116 Stat. 729 (2002) (codified in chapter 35 of 
title 44 U.S.C.). See 44 U.S.C. 3506(c)(4).
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C. Ex Parte Rules--Permit-But-Disclose

    64. This proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules.\28\ 
Persons making ex parte presentations must file a copy of any written 
presentation or a memorandum summarizing any oral presentation within 
two business days after the presentation (unless a different deadline 
applicable to the Sunshine period applies). Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda, or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule 1.1206(b). In proceedings governed by 
rule 1.49(f) or for which the Commission has made available a method of 
electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.
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    \28\ 47 CFR 1.1200 et seq.
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D. Filing Requirements--Comments and Replies

    65. Pursuant to sections 1.415 and 1.419 of the Commission's 
rules,\29\ interested parties may file comments and reply comments on 
or before the dates indicated on the first page of this document. 
Comments may be filed using the Commission's Electronic Comment Filing 
System (ECFS).\30\
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    \29\ 47 CFR 1.415, 1419.
    \30\ Electronic Filing of Documents in Rulemaking Proceedings, 
63 FR 24121 (1998).
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     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     Filings can be sent by commercial overnight courier or by 
first-class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    [cir] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
    [cir] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 45 L Street NE, Washington, DC 20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19.\31\
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    \31\ FCC Announces Closure of FCC Headquarters Open Window and 
Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788 (OMD 
2020). See https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
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     During the time the Commission's building is closed to the 
general public and until further notice, if more than one docket or 
rulemaking number appears in the caption of a proceeding, paper filers 
need not submit two additional copies for each additional docket or 
rulemaking number; an original and one copy are sufficient.
    66. People With Disabilities. To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).

V. Ordering Clauses

    67. It is ordered, pursuant to the authority found in sections 1, 
4, 7, 301, 303, 307, 308, 309, 316, 319, 325(b), 336, 338, 399b, 403, 
534, and 535 of the Communications Act of 1934, as

[[Page 40476]]

amended, 47 U.S.C. 151, 154, 157, 301, 303, 307, 308, 309, 316, 319, 
325(b), 336, 338, 399b, 403, 534, and 535, this Third Further Notice of 
Proposed Rulemaking is hereby adopted and notice is hereby given of the 
proposals and tentative conclusions described in this Third Further 
Notice of Proposed Rulemaking.
    68. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Third Further Notice of Proposed Rulemaking, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2022-14470 Filed 7-6-22; 8:45 am]
BILLING CODE 6712-01-P