LEGAL MEMO BY MICHAEL D. BERG

FCC Reinstates Experimental TV Rules

On Feb. 15, the chief of the video division of the FCC's Media Bureau granted an experimental license to test, among other things, “technological capabilities that could lead to ... a future broadcast standard.” This suggests that the reinstated broadcast rules can and will be used to permit testing of a next-generation broadcast standard — a replacement for the current ATSC standard — that would keep broadcast TV competitive as the digital world evolves.

For decades the FCC has granted applications for limited, temporary authorizations to broadcasters and other users of FCC spectrum allowing them to conduct experiments on their channels to advance technology. On Jan. 31, the FCC adopted what it called “sweeping changes” to its authorization rules.

Not unexpectedly given the wireless broadband focus of current FCC Chairman Julius Genachowski, the “sweeping changes” apply to wireless service providers.

For broadcasters, the FCC has reinstated and renumbered the long-time broadcast experimental rules with little change in them or in the Media Bureau’s procedures for processing applications. One notable change is that they now explicitly cover TV translators, low-power TV stations and TV booster stations.

On Feb. 15, the chief of the video division of the FCC’s Media Bureau granted an experimental license to test, among other things, “technological capabilities that could lead to … a future broadcast standard.” This suggests that the reinstated broadcast rules can and will be used to permit testing of a next-generation broadcast standard — a replacement for the current ATSC standard — that would keep broadcast TV competitive as the digital world evolves.

Relationship to the TV spectrum auction rulemaking proceedings. Related to these developments is the FCC’s “incentive auction” rulemaking to “repurpose” TV station spectrum above ch. 31 for use by  wireless mobile (smartphones, tablets) service providers. March 12 is the deadline to file reply comments in that proceeding.  See my prior column on that.

Also, in a Nov. 16, 2012, “Jessell at Large” column, TVNewsCheck Editor Harry Jessell argued for putting the next-generation TV standard and the FCC’s proposed spectrum auction repacking phase on the same time track, “so that the TV band repacking takes into account the attributes of the new standard and so the public and broadcasters don’t have to suffer the trauma of TV band disruption twice.”

BRAND CONNECTIONS

The three new categories of experimental licenses. The new experimental rules create three new categories of experimental licenses.  Broadcasters are not eligible to apply for them, but broadcasters and others may file “informal objections” to applications of others to alert the FCC to expected interference or other problems.

All three new licenses break with the past by authorizing a series of research and tests under a single five-year authorization, instead of the traditional shorter-term licenses that must be renewed in advance of each new facet of experimentation.

The three are:

  • The program experimental license (for educational institutions, research labs, health care institutions and manufacturers with experience in radio frequency technology).
  • The medical testing license (for facilities with RF expertise to assess new RF-based medical devices and conduct clinical trials).
  • The compliance testing license (for FCC-recognized labs to do RF product compliance testing).

The newly-authorized Baltimore broadcast experimental license.  This was granted to CW affiliate WNUV Baltimore, owned by Cunningham Broadcasting and operated by Sinclair Broadcasting under a local marketing agreement. The FCC granted the license subject to the condition that Sinclair share the results with the FCC, NAB, the Advanced Television Systems Committee (ATSC) and others. Sinclair can use only a small number of test devices; must make a good faith effort to notify health-care facilities in the area that may be affected by the experiment; and must apply for renewal of the authorization upon its expiration six months from Feb. 15.  

Broadcast engineers and other technology gurus can disagree about the merits of Sinclair’s experiment. The key is that the reinstated broadcast experimental rules are the vehicle for authorizing the experiment that, in part, is designed for research and development toward a new TV broadcast technical standard.

At the same time, it is troubling from the broadcaster perspective that the Feb. 15 letter granting the authority said: “We therefore conclude that the public interest would be served by the grant of this request since the information obtained from the experiment may be valuable to the commission’s broadband initiative.”

The grant letter also notes that the application indicated that technical standard DVB-T2, which is used in the experiment, “is the technological foundation of most aspects of wireless communications.”  

How to apply for broadcast experimental authority.  Application for new or modified broadcast experimental authority is done by filing FCC Form 309 and a supplemental narrative statement  “describing in detail the program of research and experimentation proposed, the specific objectives sought to be accomplished and how the program of experimentation has a reasonable promise of contribution to the development, extension, or expansion, or use of the radio art, or is along lines not already investigated.”

As before, there are limits on the newly-authorized TV experiment. Examples are:

  • No interference to other stations or operations.
  • Authorized power of the station cannot be exceeded by more than 5%.
  • Minimum required schedule of programming for the class and type of station must be met.
  • No charges may be made, either directly or indirectly, by the experimenting broadcaster.
  • The licensee may transmit regularly scheduled programming concurrently with the experimental transmission if there is no significant impairment of station service.

The experimental broadcast rules can be a vehicle for advancement of TV technology, innovation, service to viewers and availability of broadcast TV to viewers across all of the varied and proliferating consumer video display devices and platforms, in tandem with the FCC’s promotion of wireless growth and innovation.

This column on TV law and regulation by Michael D. Berg, an experienced Washington communications lawyer and the principal in the Law Office of Michael D Berg, appears periodically. He is also the co-author of  FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He represents commercial and noncommercial television and radio broadcasters. He can be reached at 1200 New Hampshire Ave., Suite 800, Washington, D.C. 20036-6802; [email protected]; or 202-776-2523. Read more of Berg’s Legal Memos here. 

Manny Fragata, a legal intern at Berg’s firm, contributed to this article. He expects to have his Juris Doctor degree in 2014 from the Georgetown University Law Center. His email address is [email protected].

Note: This column provides general guidance only and is not a substitute for individualized legal advice for particular situations.


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