Senate Takes Up the Broadcast Flag

The chairman of the Senate Commerce Committee intends to push a bill that would give the FCC authority to implement the broadcast flag. At a hearing Tuesday, Sen. Ted Stevens (R-Alaska) said, "We are going to push for a broadcast flag bill; at the very least, we'll give the FCC the authority to do it." Witnesses who
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The chairman of the Senate Commerce Committee intends to push a bill that would give the FCC authority to implement the broadcast flag.

At a hearing Tuesday, Sen. Ted Stevens (R-Alaska) said, "We are going to push for a broadcast flag bill; at the very least, we'll give the FCC the authority to do it."

Witnesses who oppose the flag testified at the hearing that it would impede distance learning and limit content use by libraries. Leslie Harris, executive director of the Center for Democracy and technology, envisioned a slippery slope of government technology mandates.

"If the flag regime is enacted, other requests for technology mandates will surely follow," she said.

The flag mandate is actually a consequence of the government's biggest technology mandate to date--the DTV transition. Digital transmission of video content is what got Hollywood howling in the first place, because presumably the higher quality of digital versus analog content would be more conducive to piracy. Flag foes note that digital and HD content has exploded without the flag, and that TV show DVD sales are growing.

Andy Setos, president of engineering for the Fox Entertainment Group, said that without the flag, local broadcast stations would be at a competitive disadvantage to cable and satellite, both of which are encrypted.

The FCC mandated the broadcast flag in late 2003 and ordered that digital OTA receivers recognize the broadcast flag by July 1, 2005. The order stressed that the flag would not force consumers to buy new equipment, nor restrict copying, but only prevent mass distribution over the Internet.

At the time, Thomas Patton, vice president of government relations for Philips, said it was a tight deadline: "It will be a very hard challenge for the FCC, to examine and possibly select technologies that actually meet the objectives--to stop free Internet distribution and not interfere with fair-use rights."

Nine months later, Philips was a partner in developing one of 13 flag technologies approved by the FCC. Then just weeks before the flag order was to go into effect, the U.S. Court of Appeals in Washington ruled that the FCC didn't have the authority to mandate it.

Neither the Senate bill nor the original FCC order addressed the dreaded "analog hole." Because the broadcast flag is simply the addition of bits in the DTV stream, it has no effect on analog outputs, through which a reasonably tech-savvy person could record HD content, redigitize it and blast it out over the Internet.

Last November, a House subcommittee held a hearing on flag and analog hole draft legislation. That bill, like the Senate bill, would give the FCC the authority to mandate the flag. The analog hole part was a bit more amorphous. It relied heavily on a technology referred to as "VEIL," which stands for "video encoded invisible light."

"VEIL is largely unknown as far as its cost, functionality, and potential interference with ordinary and legal consumer product uses," the CEA's Michael Petricone testified at that hearing.

There is still a question of what content should or should not be flagged. Jonathan Band, counsel for the American Library Association, told the Senate committee that if it mandated the flag, it ought to also carve out "exceptions" for news, public affairs and documentaries. The original FCC ruling covered all content, prompting Commissioner Michael Copps to dissent, in part, to the order. Yet how exceptions would work is anyone's guess. Given that no flag "on/off" automation software on the market, stations would have to put a body on the bitstream device.