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
=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
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
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.
Consumer Federation of America
Senior Director, Public Policy and Advocacy
Gigi B. Sohn
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