FCC nears vote on TV 'broadcast flag'

Federal regulators are expected to vote this week on new copy-protection rules for television programming, and a stream of last-minute lobbying is pouring into Washington, D.C., on the issue.

The subject is the so-called broadcast flag, a technically arcane proposal that broadcasters and movie studios say is necessary for the adoption of digital television, and that opponents blast as a way for copyright companies to control the development of technology.

The flag--actually a bit of binary code that would be inserted into digitally distributed television programming--wouldn't actually block recording or copying, under most versions of the proposal. Instead, it would be designed to block people from uploading their copies of TV shows to the Net, whether through file-swapping services like Kazaa or other means. The FCC may vote on the issues as soon as Tuesday.

Even a limited proposal would mean requiring makers of consumer electronics and PCs to build support for the new technology into their products. PCs, DVD recorders and other devices would check for the flag and block Internet distribution of any file that included it. The high-tech industry and consumer advocates are leery of being forced to implement any specific technology, and they have warned the FCC about setting a precedent for control of their products.

"I think what many content companies hope is that once they have a foot in the door and the Commission is regulating devices, asking it to do other things in the digital sector, like protecting movies or cable TV, gets a lot easier," said Mike Godwin, an attorney with Public Knowledge, a consumer rights group that has opposed the proposal. "Once it's established that the federal government is regulating what the architecture of computers looks like, it's easier to go back to them if you want to control distribution of content in other ways."

Digital pirates
The fight over the relatively obscure proposal for digital television is a reflection of a much larger debate over the power of computers and programmers as traditional entertainment media converge with PCs and the Net. This convergence has made new kinds of distribution possible, but it has also put the ability to make high-quality, pirated copies of digital media within reach of millions of ordinary consumers.

Hollywood studios and television stations have been adamant that they want to avoid the fate of the music industry, which saw an explosion in downloads of its copyrighted content with the advent of Napster and other peer-to-peer networks. First-run movies and television programs are already routinely available on these services and through newer technologies such as BitTorrent.

Digital television will make this danger worse, Hollywood studios say, because consumers could make pristine copies of broadcast shows and upload them immediately. That could undermine later sales of DVDs, foreign programming licensing, and even audience interest in watching ordinary television, those companies contend.

More to the point, if the flag isn't implemented, Hollywood might not trust digital television enough to license movies to broadcast networks, studios say.

"Without the flag, high-value content will be forced to migrate to secure systems, like cable and satellite," said Fritz Attaway, executive vice president for the Motion Picture Association of America. "This will help retain high-value content on free over-the-air television."

That message was echoed by a National Association of Broadcasters (NAB) letter to the FCC Monday, which pressed for approval of the proposal and asked commissioners not to exempt local or public affairs programming, as some critics have asked.

"The Commission?s adoption of the broadcast flag without any exemption for local content is another vital step toward completing the (digital television) transition," wrote NAB Chief Executive Officer Edward Fritts in his letter.

Will the flag fly?
The issue has split some traditionally vocal organizations such as the Consumer Electronics Association (CEA), which began the debate opposed to the flag but is now taking a neutral position. Some consumer-electronics companies that belong to the group want the proposal, hoping to speed the development of long-delayed digital television. Computer companies in the organization, however, are worried about being forced to include support for the new technology in their products.

Consumer groups such as Public Knowledge, the Electronic Frontier Foundation and DigitalConsumer.org have been prompting members to send faxes to the FCC opposing the plan, frequently offering one-click Internet gateways to automate the process. Washington sources said the resulting barrage of consumer lobbying has been heard at the FCC, and has helped influence commissioners' deliberations.

Those same D.C. insiders said it's not yet clear how the FCC plans to vote, however. Most said that commissioners are looking for some kind of broadcast-flag proposal, and that there is still debate about what kinds of devices should be affected, how quickly the proposal should be implemented, and who can approve various broadcast-flag-compliant technologies.

The MPAA wants most devices to support the flag beginning next summer. Consumer-electronics companies are pressing to wait until the summer of 2005 before having to start selling new devices with the technology included, given that next summer's equipment is already being designed, said Michael Petricone, the CEA's vice president of technology policy.

That date is far from academic. Any device sold before the implementation of the broadcast flag will be able to record and distribute TV programs regardless of the flag's presence. Critics say that's just one of many holes that will make the flag ineffective at stopping Internet-based piracy.

The FCC is expected to vote on the issue this week, possibly as soon as Tuesday. Any decision is likely to be closely scrutinized by Congress, where lawmakers have indicated they are worried about the FCC usurping their legislative authority on the issue.