By December 1, 2009, all commercial and noncommercial digital television (DTV) stations must electronically file a FCC Form 317 with the Commission reporting on whether the station has provided any ancillary and supplementary services over their digital spectrum during the twelve-month period ending on September 30, 2009.

Under the Commission’s Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis.  Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.

All DTV stations — regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority — must file a Form 317 reporting whether or not it provided such services and whether it generated any income from such services. If the station did provide such ancillary services, then the FCC wants to know about it. More importantly, if the station generated revenue from the provision of those services, then the FCC wants its 5% cut of the gross revenues derived from such service.  The Form 317 is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the CDBS filing system.

Some have noted recently in the ongoing debate regarding the future use of television spectrum (see our earlier blog) that Congress and the Commission have already given broadcasters the flexibility to use or lease their spectrum for virtually any purpose, so long as they continue to provide a free, over-the-air video programming stream, and remit 5% of the gross revenues derived from such ancillary services to the government.   Arguably then, the current rules already give broadcast stations the incentive and the ability to lease out any excess capacity to the highest bidder and for the marketplace to influence the optimal usage of the television spectrum.  And in exchange, the government will recoup a percentage of the revenue generated by such use of the spectrum.  So to the extent that parties seek to open the broadcast television spectrum to other possible uses and to ensure that the government benefits from the upside of such leasing, the rules for achieving that goal already seem to be in place.  Now it just remains to be seen whether there is a viable market for leasing television spectrum for such ancillary services.  To date, I think that the number of stations offering ancillary services, leasing their spectrum, and generating revenue from these ventures has been quite small.