FCC Starts Certification of "Broadcast Flag" Devices

[Gregg Lengling]

In November 2003, the FCC approved the use of a "broadcast flag" in over-the-air DTV channels to prevent unauthorized use of digital broadcast television content. (See RF Report for November 10, 2003) for information on the commission's Order and NPRM.) As part of that Order, the FCC adopted an interim approval process for digital output protection technologies and recording methods. On January 23, 2004, the FCC opened an initial certification window for these technologies. That window has closed and the FCC has released a Public Notice announcing certifications received in the window and opening a window for comments and oppositions.


The FCC received certifications for 13 technologies or recording methods from nine firms or groups. Some of the names are familiar: Sony, Thomson, Philips Electronics, Hewlett-Packard, TiVo, RealNetworks, JVC and Microsoft. Others may not be as recognizable: Digital Transmission Licensing Administrator LLC, Digital Content Protection LLC, and 4C Entity LLC. The FCC Public Notice warns, "The Commission has not yet undertaken a substantive review of the certifications identified above, makes no representation to the completeness thereof, and reserves the right to dismiss or take other appropriate action with respect to any certification that contains insufficient information to evaluate the appropriateness of the underlying digital output protection technology or recording method."


The comment/opposition period closes April 6, 2004 and the reply to opposition deadline is April 16, 2004. While the Public Notice lists Docket numbers for each of the technologies, I was not able to find a way to access them from the FCC Web site. Comments are to be filed using the Electronic Comment Filing System - EFCS.


The FCC also released an Order Adopting Protective Order in the matter of digital output protection technology and recording method certifications: D-VHS technology. Victor Company of Japan (JVC), filed a request for "Confidential Treatment of Proprietary and Commercially Sensitive Information Contained in Exhibit 1 of the Attached Submission for Broadcast Flag Certification (Mar. 1, 2004)."


To protect the confidentiality of the document, the FCC said, "JVC shall make the confidential or proprietary documents available for review at the offices of JVC's outside counsel or, if JVC has not retained outside counsel, at the offices of JVC's in-house counsel. Parties reviewing Exhibit 1 will be provided the following alternatives: (1) parties will be provided adequate opportunity to inspect Exhibit 1 onsite; or (2) parties may inspect Exhibit 1 onsite with the ability to request a copy, at cost. Any copies of Exhibit 1 that are removed from the offices of JVC's counsel will be stamped "CONFIDENTIAL INFORMATION - SUBJECT TO PROTECTIVE ORDER IN MB DOCKET NO. 04-68 before the Federal Communications Commission" and must be returned in accordance with the terms of the Protective Order. Any party seeking access to Exhibit 1 subject to the Protective Order shall request access pursuant to the terms of the Protective Order." See the Order Adopting Protective Order for full details.