FCC Won’t Require RAND Licensing of ATSC 3.0 Patents ‘at This Time,’ Says Order

Critics had urged the FCC to impose RAND licensing rules, said the footnote, unchanged from that in the Oct. 26 draft. Figuring prominently with the critics were their fears that Sinclair would be in for a financial windfall from its 3.0 intellectual property holdings, though Sinclair and its One Media subsidiary insisted they control only a tiny portion of the patents and applications essential to 3.0 (see 1711090003). "With no evidence of patent licensing issues, we believe it is premature to impose regulations on the private licensing marketplace,” the commission said.

Weighing in that decision was ATSC’s requirement that patent owners disclose they hold IP relevant to 3.0 and that they commit to licensing their patents on fair RAND terms, said the footnote. “Organizations that do not comply with our rules, as defined in the bylaws and other policies, may be prohibited from participating in our work,” ATSC President Mark Richer told us when we asked how his group polices those who violate its patent policy. “Disputes relating to patent licensing terms may be resolved in venues external to ATSC including the courts.”

ATSC's patent policy “provides assurance that necessary IP will be available” for 3.0's deployment, said Richer in reply comments June 8 in docket 16-142. “Patent statements must be filed by holders of patents that may be essential to an ATSC standard prior to a vote on the standard at issue, both to disclose the existence of the patent and commit to RAND licensing of the disclosed patent,” said Richer, saying all such patent disclosure statements are posted publicly at ATSC’s website. ATSC’s patent policy “is in line with best practices for patent policies in standards organizations globally,” said Richer.

MPEG LA, which is in talks with potential licensors to start a 3.0 patent pool (see 1711010054), “is authorized by patent holders to offer only one license” in each of the patent-pool “programs” it runs, “and the same pool license is offered to everyone,” spokesman Tom O’Reilly said. “Our pools don’t make RAND commitments; individual patent holders do.” MPEG LA runs 15 patent pools, including for ATSC 1.0 and for H.265, 3.0's official video codec.

HEVC Advance, which runs a second H.265 patent pool, commits “upfront” that IP in the pool will be licensed on fair RAND terms and requires licensors to sign their names to that commitment, CEO Pete Moller told us. “I am not aware of any key participants in the HEVC/H.265 standard-setting process,” including licensors in the HEVC Advance pool, that didn't make a RAND “commitment to the standard setting body itself pursuant to their participation,” said Moller. Several standards organizations, including the ITU and the Motion Picture Experts Group, had a hand in framing and approving the H.265 codec.

The FCC “needs to better understand the patent issues involved” in 3.0 deployment, said Commissioner Jessica Rosenworcel in her dissenting statement Thursday. “When the agency adopted the ATSC 1.0 standard, it made clear that reasonable and nondiscriminatory terms were part of the package,” she said. “In today’s order, this issue is addressed in no more than a footnote.” Before the commission authorizes “billions for patent holders” and sticks consumers with the bills, “we better understand how these rights holders will not take advantage of the special status conferred upon them by the FCC,” she said.

It appears that “licensing of the patents for DTV technology will not be an impediment to the development and deployment of DTV products for broadcasters and consumers,” said the FCC’s Christmas Eve 1996 order adopting the 1.0 standard. Though adoption of the standard is “premised” on the requirement that relevant patents be licensed on RAND terms, the commission believes “that greater regulatory involvement is not necessary at this time,” said the order, released under then-Democratic Chairman Reed Hundt. The FCC practiced that restraint at the urging of ATSC, which had recently begun asking patent holders for “a written commitment to abide by” the RAND requirement, said the order.

3.0 Notebook

A footnote in the order on privacy concerns added the morning of the vote rejects the idea the decision should address privacy. Commissioner Mignon Clyburn noted the late insertion in her dissenting statement. Those expressing concern about privacy (see 1711140046) didn’t offer “any evidence or substantiation to support their speculative assertions about such harm or any alternatives to address the alleged harm,” footnote 231 said. “In the absence of such evidence, we decline to alter today’s action to address their conclusory assertions.” The order was expected to include case-by-case waivers for stations that couldn’t find simulcast partners, but the text doesn’t limit the waiver to that. “We will consider requests for waiver of the simulcast requirements on a case-by-case basis, including requests from full power and Class A stations to transition directly from ATSC 1.0 to ATSC 3.0,” the order said. Though the ruling requires stations to simulcast “substantially similar” content for only five years, it leaves open the possibility the requirement could be extended. “We intend to monitor the ATSC 3.0 marketplace, and will extend the substantially similar requirement if necessary,” the text said.