POWELL BELIEVES NEWSCASTS SHOULD BE PROTECTED BY BROADCAST FLAG
With the FCC on the verge of approving broadcast flag protections, questions have swirled in recent days about whether that shield should apply to TV newscasts and public affairs programming. Chmn. Powell believes it should for 2 reasons: (1) Mass redistribution on the Internet of nightly local newscasts would quickly devalue expensively gathered news, perhaps providing a disincentive for TV stations to produce news. (2) An exemption for TV news would force federal policymakers to determine just what constituted news -- a line that would be difficult to draw. “We would need to make fine-grain distinctions,” a spokesman for the chmn.’s office said. As an example, he cited sports highlight shows, which might be considered news or arguably could be called entertainment.
Where the other commissioners will come out on the issue remained unclear, although some FCC-watchers believed Comr. Adelstein had some concerns about flagging news. Meanwhile, an FCC source said the Commission was likely to approve an interim policy and issue a Further Notice of Proposed Rulemaking (FNPRM) on the flag, specifically looking at the mechanics of the approval process for flag-compliant electronic devices. There is much debate over the issue, and the commissioners apparently don’t want to see any one industry dominate the approval process.
House Commerce Committee Chmn. Tauzin (R-La.) floated a digital TV bill last year that would have prohibited the use of the broadcast flag to signal protection for news and public affairs programming, including debates. However, the bill wasn’t ever actually introduced but was held out more as a threat to parties seen as dragging their feet in the DTV transition.
The subject of a news exemption has been touchy for broadcasters, who spend a fair amount of their budgets on newsgathering tools, from live trucks to satellite transmitter dishes to video cameras and the newsrooms themselves, not to mention the on-air talent. Broadcasters generally consider their nightly newscasts to be among their most valuable assets. In recent weeks, NAB, the major network affiliate groups and public broadcasters all have expressed their desire to protect news and public affairs programming.
Also weighing in have been some of the major sports leagues. The Office of the Commissioner of Baseball, Bud Selig, wrote to the FCC last week saying baseball would “strongly object” if sports events or sports-related programs were excluded from broadcast flag protections.
Similarly, the National Football League, the National Hockey League, National Collegiate Athletic Assn., the PGA Tour and the Ladies Professional Golf Assn. told the FCC earlier this month in a joint statement that the broadcast flag was “an essential precondition” to their making sports programming available in digital format. Without flag protections, the groups threatened to move their content to cable and/or satellite. They were particularly concerned about secondary markets for programming, such as highlight shows and classic past games or events. If sports were included in any sort of news exemption, “television rights fees, ticket sales, regional fan interest, blackout policies and the Commission’s sports blackout rule -- all would be substantially undermined,” they wrote. If the Commission did adopt an exemption, the groups asked the FCC to clarify that they would not be included.
On the other side, a number of groups have come out against the broadcast flag more generally. Consumers Union has pointed out to the Commission that, without an exemption for news, a recording of highlights from a child’s high school soccer game couldn’t be send to the child’s grandparents over the Internet. A spokesman for Consumers Union said that was just one of a number of unintended consequences the flag could have on what today was considered customary and fair use of content. The Center for Democracy & Technology (CDT) has said it believes there should be some type of carve-out for certain news and public affairs programming, acknowledging that there would be some difficulties in determining that distinction. “It would be troubling if presidential debates and educational programs all found themselves under the same kinds of restrictions as the movies or first-run programs that the studios would like to protect,” CDT Assoc. Dir. Alan Davidson said: “We've had a tradition in this country of certain kinds of programming being accessible.”
Meanwhile, Sen. Brownback (R-Kan.) wrote to Powell Mon. requesting that the FCC hold off on approving a broadcast flag until there could be at least one en banc hearing on the issue. “I am writing today out of concern that the Commission’s consideration of this matter ‘on circulation,’ as opposed to holding an open Commission meeting, would be a disservice to the public and call into question the transparency of government in such a critical consumer issue,” the letter said. Brownback said he had concerns that the flag would create “invasive regulation of home electronics and computing appliances.”