FCC authority to impose broadcast flag is debated

[Gregg Lengling]

Communications Daily...12/10/2002
Lexis Nexis

By Michael Feazel and Brigitte Greenberg

There's no strong evidence now that the FCC has the authority to impose broadcast flag copy protection technology on consumer electronics manufacturers, CEA said in its comments on the Commission's rulemaking (MB 02-230). However, broadcasters, program owners, advertisers and writers in joint comments said the broadcast flag was "the most appropriate and efficient solution for the protection of digital broadcast television."

Although parties in the rulemaking seemed to agree the broadcast flag shouldn't be used to prevent copying for personal uses, they disagreed on how much freedom there should be and how copy protection should be provided. For example, the IT Coalition said protected content should be encrypted at the source because that was more effective. However, CEA opposed "any source encryption of terrestrial DTV broadcasts as an alternative to the 'flag' proposal." FCC was overwhelmed with comments on the proceeding, mostly brief comments from individuals opposing restrictions on their right to copy. Agency staff was running well behind its normal schedule in posting comments on the Web site, with comment count approaching 3,000 as of Monday afternoon.

The FCC can't even decide whether it has the authority to require the broadcast flag until all evidence and rationales for it, as well as the rules themselves, can be evaluated, CEA said. It said, however, there was "no conclusive evidence at this time" supporting public interest rationale for broadcast flag rules. On the personal copying issue, CEA went further than most, saying copying should be allowed for retransmission within an unspecified "circle of friends and family."

Content owners said the FCC shouldn't require them to embed the flag in content because they might want to make it available for wide distribution. They said any consumer devices with modulators or demodulators should have to be able to comply with flags, and the requirement would have "minimal impact on consumers," who would "still be able to distribute and record protected digital broadcast content within the personal digital network environment." The cost impact, the filing said, "will be insignificant." The filing was by ABC and its affiliates, AFL-CIO, AFTRA, American Assn. of Ad Agencies, ASCAP, Belo, BMI, CBS, Directors' Guild, Fox, IATSE, MPAA, MSTV, NAB, Screen Actors Guild, Writers Guild.

Industry groups said there was broad consensus on broadcast flag, but IT Coalition (Business Software Alliance and Computers Systems Policy Project) said the group hadn't reached consensus on many details. Coalition said many of its member companies had "significant reservations" about implementation of a flag: "Not only is such implementation made difficult by the complex and ever-evolving nature of the technologies involved, but the Commission's own governing statute does not give it delegated authority to act in the DTV content protection area." The coalition said the FCC would have to make a strong public interest showing the need for a flag, but said there was "no evidence that DTV content is being withheld because of a lack of protection."

Public Knowledge offered a white paper, "Harry Potter and the Prisoners of the DTV Transition," that the group said would be an alternative solution. The paper proposed that broadcasters "netcast" programming -- deliver TV programs over the Internet -- as a way to satisfy congressional mandates. Public Knowledge officials said the paper was meant to provoke discussion. Mike Godwin, senior technology counsel for Public Knowledge, said netcasting would be coupled with policy promoting content protection through market competition. Harry Potter reference was meant to evoke author J.K. Rowling's facility for tying together plot threads in her novel's conclusions, Godwin said.

The Information Technology Assn. of America (ITAA) said the FCC shouldn't attempt to impose regulations or mandate technology solution. Broadcast Protection Discussion Group (BPDG) isn't a voluntary, consensus-based standards body and the FCC therefore shouldn't rely on its findings to establish broadcast flag rules, ITAA said. Electronic Frontier Foundation (EFF) rejected what it called Hollywood's broadcast flag proposal and said FCC should "set aside Hollywood's latest bid to undermine fair use and stymie innovation." EFF said the proposal would give movie studios unwarranted control over development of DTV and related technologies, to the detriment of creators and consumers. "A broadcast flag mandate is an ineffective solution to a non-existent problem," EFF said in its comments.