Back when the transition to ATSC was first detailed the FCC (if I recall correctly) stated that each licensee would be required to provide one stream of free programming in a resolution no less than that of its previous analog broadcast. Beyond this, stations are free to use the remaining bandwidth for whatever they wish (including pay services). This troubled me at the time, but most people I talked to seemed to dismiss the issue.
There have already been a couple of schemes to use part of the ATSC bandwidth for pay services, though I can't tell from the original article whether this is one of them or whether they are talking about analog broadcasts. Regardless, I expect we will see a lot more of this as ATSC becomes more ubiquitous (and independent of whether analog broadcasts are discontinued).
They will be able to use a lot more than 5 percent...
Given the largely independent nature of ATSC streams it might actually have been possible to do something like this in a reasonable way, but I believe that the possibility of pay services was one of the carrots used to encourage broadcasters to invest in ATSC hardware.
Dan Lanciani ddl@danlan.*com