BROADCAST TV WOULD WITHER WITHOUT PROTECTION, PRODUCERS TELL FCC

CEA questioned whether FCC, “without further congressional guidance, has jurisdiction to impose mandates on broadcast receivers and home-networked devices,” in comments on agency’s broadcast flag proceeding. However, program producers said broadcast TV gradually would cease to exist without flag because producers wouldn’t make high- quality programming available.

CEA told agency that consumers were used to having unrestricted rights to record free terrestrial broadcasts and should continue to do so. To extent manufacturers must constrain product design and performance to favor intellectual property rights, any legally mandated restrictions “should be narrowly tailored and construed to protect the right in question” and shouldn’t hinder innovation and should foster availability of content to consumers, CEA said. Association asked that any mandate not include particular technical specifications or design conformance.

Broadcasting industry as it’s known today will cease to exist if FCC and Congress don’t mandate implementation of broadcast flag proposal made by nation’s major content providers, some of those producers told FCC. Joint reply comments were made by more than 15 industry groups and companies, including MPAA, ABC, CBS, Fox, NAB, American Federation of TV & Radio Artists (AFTRA), Belo, Directors Guild of America, Dreamworks SKG, Screen Actors Guild (SAG), AFL-CIO. High-quality programming will be withheld from broadcast TV and given instead to other, protected distribution channels if adequate protections aren’t adopted “in parallel with the rapid expansion in broadband connections and DTV equipment,” groups said.

Reply comments originally were due Tues., but because of huge snowstorm in Northeast, FCC Media Bureau extended deadline to Fri. In its rulemaking, FCC seeks comments on, among other things, whether broadcast flag is necessary, whether it should be mandated in consumer electronic (CE) devices, whether it would affect consumer privacy, whether agency has legal authority to impose any mandates in that area.

Content producers contend that, as technology improves to allow perfect copies of programming to be traded freely over Internet, “television programming will be as susceptible to piracy as music is now, unless a solution is already in place.” They said threat of unauthorized redistribution over wide area networks was “qualitatively different” from any other previous technology, such as VCR. Broadcast flag solution already proposed should be adopted and any delay will allow device manufacturers “to create a huge legacy of noncompliant products that may stymie the broadcast flag,” they said.

Groups also sought to allay some fears, saying flag wouldn’t: (1) Affect existing equipment in consumers’ homes. (2) Restrict number of copies consumer could make. (3) Prevent content transfer within home. (4) Require approval of content owner for transfers in home or for use in school project. (5) Apply to every device nor to Internet service providers, but only to DTV receivers, DTV modulators and “a very limited number of related DTV consumer products.”

On other side, Electronic Frontier Foundation (EFF) told FCC to “set aside Hollywood’s latest bid to undermine fair use and stymie innovation by requiring all manufacturers of digital television devices to seek Hollywood approval… and by banning the use of open source software in DTV applications.” EFF reminded agency that those were same people who tried to ban VCR. EFF’s Cory Doctorow said threat of DTV piracy was “both nonexistent and implausible” hyperbole and Hollywood’s solution would only slow DTV transition. “Hollywood’s own admissions about the ‘analog hole’… mean that the broadcast flag will do nothing to slow down such unauthorized copying as may occur, while setting the stage for even more restrictive mandates,” Doctorow said. EFF said that had nothing to do with Internet piracy but desire by Hollywood to control future of TV technology.

IT Coalition, which includes Business Software Alliance and Computer Systems Policy Project, said that while it remained opposed to piracy, it also opposed govt.-imposed technology solutions not yet supported by consensus of affected industries. “Given the speculative and fairly remote nature of the alleged threat, the FCC should allow these industries to attempt to finish the work they have begun” in private negotiations, coalition said. Allowing industries to work among themselves would save FCC from having to develop technology rules “in a field wholly outside its regulatory expertise,” coalition said. Besides, broadcast flag “solution” is not necessary for the DTV transition to move forward, group said.

Also opposing broadcast flag was Consumer Federation of America (CFA), which said Hollywood’s proposal was “assault on consumer rights to use content they have legally obtained.” CFA said producers hadn’t made credible case that Internet transmission of broadcast content was problem or would become one and said flag was unlikely to stop unauthorized copying by commercial hackers and large peer-to- peer sharing operations. CFA also said flag wouldn’t affect most actual distribution of digital content since 90% of households received TV from cable or satellite, not over-air broadcast. CFA questioned costs associated with imposing flag and said proposal would put FCC in position of defining consumers’ “personal digital network environment,” which CFA said was “an unprecedented intrusion in to consumer fair use rights.” It said any approach must start from assumption that “consumers are not criminals.”