Lobbyists try to back door broadcast flag

With the ink hardly dry on a court decision banning the copy prevention technology known as the broadcast flag, motion picture industry lobbyists got caught last week apparently trying to move the issue to Congress as an item buried in an appropriations bill.

Public advocacy groups such as the Electronic Frontier Foundation (EFF) and the Public Advocate discovered the tactic and ignited a firestorm of public protests that at least temporarily stalled the effort.

Early last week it was widely reported that a provision authorizing the broadcast flag would be quietly attached to a bill funding the FCC and other agencies for the next fiscal year. Though no names behind the ploy were published, the idea was reportedly to slip the measure past opponents and avoid a public debate.

With the help of several Internet Web sites, the story almost instantly exploded into public view. The EFF reported that within hours 27 members of the Senate Appropriations Committee received more than 11,000 e-mails and faxes protesting the ploy. Sen. Dianne Feinstein (D-CA) alone received more than 2600 messages in her inbox, the group said.

As the week wore on, members of the committee continued to be flooded with protests. Librarians and Elgato Systems, which sell the HDTV tuners that would be outlawed, joined other groups in signing a letter to senators saying: “The broadcast flag scheme will hurt consumers,” CNET News reported.

Ironically, no senator so far has publicly pledged to support implementation of the broadcast flag.

In November 2003, the FCC voted unanimously to adopt the broadcast flag rule, which required manufacturers of digital TVs and computer HDTV tuners to abide by a complex set of regulations designed to limit Internet redistribution of video clips. Manufacturers that did not comply would be subject to government sanctions.

But a federal appeals court in May tossed out the FCC’s rule, saying the agency had exceeded what Congress had permitted. The court did, however, note that Congress had the power to authorize the broadcast flag if it chose to.

Since then, the politics surrounding the broadcast flag has shifted to Congressman Dan Glickman, president of the Motion Picture Association of America (MPAA). He wrote in an opinion article last month that the rule is necessary “to assure a continued supply of high-value programming to off-air digital television consumers.” A copy of the draft legislation for Congress has surfaced.

Even if the Senate were to vote to adopt the broadcast flag, its final passage in Congress is uncertain. The appropriations bill already approved by the House of Representatives includes no such requirement. Key House members such as Commerce Committee Chairman Joe Barton, (R-TX), have been skeptical, and a Congressional Research Service report worries about the broadcast flag’s impact on fair use rights.