Broadcast Flag Waves on Hill

The digital audio and video broadcast flag got a double dose of Hill attention Tuesday.

In the Senate, the digital-content-protection technology was part of a video franchising bill being marked up in the Commerce Committee (a House version of video-franchise reform did not address the broadcast flag issue).

Two amendments related to the flag were withdrawn, but may be reintroduced during floor debate on the bill.

In the House, the Energy & Commerce Telecommunications Subcommittee held a hearing on the flags Tuesday under the heading: "Can Content Protection and Technological Innovation Coexist?"

Both sides would say the twin goals in the title are achievable, but disagree on how to strike that balance. It was the first hearing held on the audio flag.

Broadcasters and studios argue that the flag is needed to discourage digital piracy. Fair use fans argue that the technology will discourage fair use copy and distribution of the content.
Gigi Sohn, president of Public Knowledge, said that the answer was a "resounding 'yes.' " But she said the flag would give unprecedented power to the FCC to dictate product design and would prohibit not only indiscriminate but discriminate uses. It will cause consumer inconvenience and confusion, as well as cost, she said.

Any flag regime, she said, must include circumvention for news and public affairs and public domain programming, she said.

Fritz Attaway, of the Motion Picture Association of America, said that the "sole purpose" of the flag is to provide a level playing field for off-air broadcasters. "If broadcasters can't do that, it is axiomatic" he said, "that the owners of valuable content will pick cable and satellite services, which can protect their content."

The FCC already approved the flag once, but a court later ruled that it did not have the authority to do it since it is a post-transmission technology and the FCC's jurisdiction, said the court, ended at the transmissions edge.

The Senate bill, if passed as currently drafted, would grant the FCC that authority for both the audio and video flag, but with carve-outs for fair use.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.