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Senate asked to delay, don't rush to approve broadcast flag

Senate asked to delay, don't rush to approve broadcast flag
Senate asked to delay, don't rush to approve broadcast flag

On a related note, the House Commerce's discussion draft of 
communications bill is here: 

It does not include the broadcast flag. Background is here: 



Re: Hearings Required on Potential "Broadcast Flag" Legislation

June 17, 2005

Dear Chairman Stevens,

Public Knowledge, Consumers Union, and Consumer Federation of America 
are writing to you today to urge you not to pass as part of an 
appropriations or budget package any legislation giving the Federal 
Communications Commission (FCC) the authority to impose its 
"broadcast-flag" technology mandate.

We ask you to consider the potential pitfalls of the broadcast flag 
scheme which:

=95Will give the FCC unprecedented control over technology
=95Will harm educators and consumers
=95Will be superfluous in light of the content-protection tools the 
content industry now has.

We recognize that you and other members of Congress have been told that 
the broadcast-flag scheme, together with legislative authorization for 
the Federal Communications Commission to implement it, are necessary to 
hasten the transition to digital television through recovery of the 
currently used "analog" television broadcast spectrum.

We believe, however, that you have heard only part of the story. As a 
result, we are concerned that Congress may choose to rush into law an 
authorization for the broadcast-flag scheme without fully considering 
both the consumer impact of the scheme and the fact that the scheme will 
require giving the federal government an unprecedented degree of control 
over digital economy. For these reasons, we believe it is necessary for 
Congress to hold hearings on the broadcast-flag scheme before any 
authorizing legislation is proposed or enacted.

As you may know, Public Knowledge, together with other consumer and 
public-interest organizations, challenged the FCC's the broadcast-flag 
regulation in the D.C. Circuit Court of Appeals. On May 6, 2005, that 
court in the strongest possible terms unanimously struck down the 
regulation, on jurisdictional grounds.

The jurisdictional issues in this case underscore the substantive 
problems with the broadcast-flag scheme; specifically, any 
jurisdictional grant to the FCC of the power to implement a 
broadcast-flag regulation necessitates giving broad, unprecedented power 
to the FCC to dictate product design, and to determine the future course 
of our digital economy. By imposing government-agency control over the 
design of digital electronics and, potentially, over computer operating 
systems and other software, the scheme will inevitably slow or stifle 
the development of innovative consumer electronics and other products. 
The Commission is not equipped by experience or tradition to be the 
gatekeeper on this unprecedentedly broad range of technologies.

Even if Congress nonetheless finds that digital-television faces an 
infringement threat that needs to be addressed, it should also find that 
there are alternative techniques for protecting television content that 
do not require putting the FCC in control of the design of almost all 
digital products, everywhere, that might conceivably contain or transmit 
digital television.

A full hearing of the issues surrounding Internet piracy of television 
also would show that content owners now have all the legal tools they 
need to pursue, punish, and deter infringers of television and other 
content. The passage of the Artists Rights and Theft Prevention (ART) 
Act, along with the U.S. Supreme Court's decision in the MGM v. Grokster 
case are only the most recent additions to the legal solutions the 
content industry has at its disposal.

The tenuous argument for mandating this technology should be weighed 
against the disruptions to consumers, who will likely face a 
compatibility nightmare. Because the flag-compliant technologies the FCC 
approved are not designed to work with each other, consumers will have 
to make certain that all of their devices use the same 
content-protection technology.

As the appellate court found, educators and librarians also will have 
difficulties using DTV material under the broadcast-flag scheme. On 
balance, the broadcast flag scheme is not worth the trouble and 
confusion in the marketplace it will cause.

We do not oppose all digital-rights management. Our view is that any 
government policy calling for technological protection of content should 
be should be designed so as (i) to rely on free-market standard-setting 
to the greatest extent possible, (ii) to protect long-standing consumer 
interests and expectations, (iii) to promote innovation, and (iv) to 
uphold the traditional "copyright balance" between copyright holders and 
the public interest. The broadcast flag fails all of these tests.

Congress would be able to more accurately understand the issues 
surrounding digital-television copyright protection only if these issues 
are given an adequate amount of scrutiny. Simply inserting 
broadcast-flag language into a budget, spending or other bill is not 
adequate. Such a hurried action will certainly lead to greater problems 
later than the ones intended to be fixed now.


Mark Cooper
Research Director
Consumer Federation of America

Gene Kimmelman
Senior Director, Public Policy and Advocacy
Consumers Union

Gigi B. Sohn
Public Knowledge
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