Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

• Although the federal government shutdown continues for its fifth week, and most FCC employees are not working, the Commission, as required by law, held its regular monthly open meeting.  At that meeting, as summarized below, the Commissioners adopted three Notices of Proposed Rulemaking – one on ATSC 3.0 and two relevant to earth station operations (we previously noted the release of the drafts of these Notices here). 
  • The FCC adopted a Fifth NPRM on ATSC 3.0, proposing changes to its rules to provide TV stations with additional flexibility during the transition to the new transmission standard. The Commission asked if it should allow stations to determine when to stop broadcasting in ATSC 1.0 or to require continued simulcasting in both standards but with fewer restrictions on the currently required duplication of their ATSC 1.0 and 3.0 signals – both in terms of duplication of programming and in station coverage.  The FCC also seeks comments on issues including the use of encryption or digital rights management, requirements for multichannel video programming distributors like cable and satellite TV to support ATSC 3.0 signals, and on the sunset of ATSC 1.0 service.
  • The FCC adopted an NPRM proposing to facilitate more intensive use of spectrum in the 24 GHz, 28 GHz, upper 37 GHz, 39 GHz, 47 GHz, and 50 GHz bands (the UMFUS bands), which are used by some earth stations, asking for comment on proposals to take actions to facilitate more intensive use of this spectrum.
  • The FCC also adopted an NPRM proposing changes to its existing regulatory framework for space and earth station licenses, including streamlined application requirements and expedited processing timeframes, extending the license terms for most earth stations, expanding the list of modifications that applicants can make without prior approval, and shifting to a predominantly nationwide blanket licensing approach for earth stations. 

Comment dates in these proceedings will be set by their publication in the Federal Register, which will likely not occur until after the FCC reopens after the shutdown.

• Also related to earth stations, the FCC released a draft NPRM proposing to auction a portion the Upper C-Band (3.7-4.2 GHz).  That band is used by earth station operators, including broadcasters, whose operations have already been curtailed by prior auctions of the Lower C-Band for use by wireless operators (an action that lead to payments to “incumbent” earth station operators whose facilities had been registered, reimbursing them for the costs of changing their operations to replace those that had been in the Lower C-Band).  The new proposal to auction Upper C-Band spectrum is intended to fulfill Congress’ mandate in the One Big Beautiful Bill that the FCC complete an auction of that spectrum by July 2027.  The FCC proposes to clear incumbent earth station operators from the band over a five and a half-year period and, as with the prior migration from the Lower C-Band, the FCC proposes that new band users reimburse incumbent earth station operators for their transition costs.  The FCC proposes to define incumbent earth stations as those that were operational as of April 19, 2018, and remain operational, were licensed or registered as of November 7, 2018, and timely certified the accuracy of their information on file with the FCC by May 28, 2019 (a condition for reimbursement during the previous C-band transition). 
• During a speech this week at the Media Institute’s Free Speech America Gala in Washington, DC, FCC Commissioner Trusty stated that content-based regulation of broadcasters that would never be permitted on other forms of media is allowed by longstanding Supreme Court precedent.  While the First Amendment still applies to broadcasters, because of the scarcity of broadcast spectrum, some regulation by the FCC is permitted under the Congressionally mandated “public interest” standard.  Whether informal pressure on broadcasters to deter disfavored speech (a practice known as “jawboning) exceeds the permissible bounds of FCC regulatory power “is a more difficult question.”  Trusty said that she preferred that broadcasters exercise “careful judgment” in their programming decisions and take their public interest obligations seriously, so that the FCC did not need to exercise its regulatory authority.  She said that the FCC should look for ways to give broadcasters the flexibility to make these programming decisions and to operate in the public interest.