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Senator drafting 'broadcast flag' ban

The "broadcast flag," an infamous copy-protection scheme aimed at halting redistribution of over-the-air television content via the Internet, could face new setbacks if a Republican senator from New Hampshire gets his way.

U.S. Sen. John Sununu said this week that he's drafting legislation that would prohibit the Federal Communications Commission from "requiring or imposing a specific technology, technological standard, solution, or product on industry," with an eye toward the anticopying regime.

"These misguided requirements distort the marketplace by forcing industry to adopt agency-blessed solutions rather than allow innovative and competitive approaches to develop," the free-market-leaning politician said in a press release.

In 2005, a federal appeals court threw out FCC rules prohibiting the manufacture of computer and video hardware that lacked the anticopying features, saying the federal regulators had overstepped their boundaries in concocting such a requirement. But since then, a number of politicians from both major parties, with backing from the entertainment industry, have sought on multiple occasions to enact new laws that would grant the FCC that authority.

More recently, the Senate Commerce Committee, of which Sununu is a member, endorsed a revival of the system--and its extension to audio broadcasts--as an amendment last June to a wide-ranging communications bill. When that bill ultimately died, some feared the proposal, which is unpopular among consumer advocacy groups and the consumer electronics industry, would sneak into unrelated legislation, although it never did.

The details of Sununu's plan remained unclear at press time, but there are indications that the senator could be thinking beyond copy-protection requirements.

An aide said the new bill's language would be based on an amendment adopted as part of a 2005 bill outlining 911 requirements for Internet phone providers. That amendment stipulated that the FCC could not prescribe a "specific technology, product or technological standard" for use by phone providers seeking to fulfill their 911 obligations--a move aimed at keeping their costs in check.