During a hearing Thursday, members of the House of Representatives' subcommittee overseeing intellectual-property law warned the FCC that a possible proposal for digital TV regulations could encroach upon Congress' turf.
In August, the FCCunanimously to take the first step toward developing regulations involving a "broadcast flag" to designate shows that may not be copied freely.
Rep. Lamar Smith, R-Texas, the panel's chairman, said the FCC "might issue rules that impact the Copyright Act."
Although Smith's intellectual property subcommittee is responsible for drafting copyright laws, the Energy and Commerce Committee has jurisdiction over the FCC. Smith and other panelists expressed concern that copy-protection rules were being set by an executive branch agency instead of by the appropriate committee in Congress.
The FCC has not yet decided to go forward with a broadcast flag rule. The movie studios say that a law or FCC rule will be necessary to require that televisions sold after a certain date recognize the flag and, if it is present, limit consumers' rights to distribute digitally transmitted shows without restrictions.
Democrat Rep. Howard Berman, whose Southern California district borders Hollywood, said he was worried that the FCC could veer in a direction that might mandate "fair use" rights that would not be favorable to the entertainment industry. "I'm opposed to the FCC attempting to...limit the exclusive rights of copyright holders in its broadcast flag rule making," he said.
Berman said the FCC must not require that "copyright owners surrender any of their exclusive rights to consumers...I'm unaware of any precedent for a federal agency doing so. The closest precedent involves the Copyright Office, not the FCC."
W. Kenneth Ferree, the FCC's media bureau chief, testified that his office has received over 6,000 comments on the proposed proceeding so far. "We have just begun to go through the record," Ferree said. "If the FCC decided to go forward with the flag implementation of some sort--without commenting on what it would look like, I think it would be done this year."
Fritz Attaway, a senior lobbyist for the Motion Picture Association of America, said the only alternative to the broadcast flag would be to use encryption. "The only other way to deal with this problem is for broadcasters to encrypt their signals, which has enormous legacy equipment problems for consumers," Attaway said.
"Implementation of the broadcast flag is a necessary, but by no means complete, solution to the problem of Internet trafficking in infringing movies and other copyrighted material," Attaway said. "Another key component of this problem is analog reconversion, which refers to the conversion of protected digital content to analog, and its reconversion to digital, which wipes out all known digital rights management technologies."
Consumer groups have challenged the broadcast flag proceeding, saying it is unnecessary and unwise.
"The astonishing lack of evidence behind claims of any current or imminent problem facing copyrighted high-quality digital works transmitted over airwaves gives us pause," the advocacy group Public Knowledge told the FCC. "We have always believed the case for the broadcast flag was thin, but have been amazed to discover that the evidence comes close to being nonexistent."