FCC authority to impose broadcast flag is debated

[Gregg Lengling]

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

Although parties in rulemaking seemed to agree broadcast flag shouldn't be used to prevent copying for personal uses, they disagreed how much freedom there should be and how copy protection should be provided. For example, IT Coalition said protected content should be encrypted at 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 close to 3,,000 comments on proceeding, mostly brief comments from individuals opposing restrictions on their right to copy.

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

Content owners said FCC shouldn't require them to embed 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 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." Cost impact, filing said, "will be insignificant." 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 group hadn't reached consensus on many of details. Coalition said many of its member companies had "significant reservations" about implementation of 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." Coalition said FCC would have to make strong public interest showing of need for flag, but said there was "no evidence that DTV content is being withheld because of a lack of protection."

Public Knowledge offered white paper, "Harry Potter and the Prisoners of the DTV Transition," that group said would be alternative solution. Paper proposed that broadcasters "netcast" programming -- deliver TV programs over Internet -- as way to satisfy congressional mandates. Public Knowledge officials said 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 FCC shouldn't attempt to impose regulations or mandate technology solution. Broadcast Protection Discussion Group (BPDG) isn't voluntary, consensus-based standards body and 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 proposal would give movie studios unwarranted control over development of DTV and related technologies, to detriment of creators and consumers. "A broadcast flag mandate is an ineffective solution to a nonexistent problem," EFF said in its comments.