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FCC LACKS COPYRIGHT JURISDICTION ON IBOC RADIO, CEA SAYS

Any FCC action that heeds the RIAA’s call for content protection on in-band on-channel (IBOC) radio would be unjustified and outside the Commission’s legal jurisdiction, CEA said in comments on the FCC’s notice of inquiry (NOI) on the copyright implications of digital radio.

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Besides not having the jurisdictional authority to impose an IBOC content protection solution, CEA said it also opposes any FCC action because “there is no demonstrated actual or potential harm,” nor has a specific proposal been raised. Any such Commission action would “seem to interfere with the technical and legal framework” establish by Congress in the 1992 Audio Home Recording Act (AHRA), it said. To the extent that the AHRA might need to be revised, “this falls within the purview of the Congress, not the Commission,” CEA said.

CEA said it believes the RIAA “faces an uphill climb to overcome the historical judgment of the Congress that record companies do not have the power to prevent free terrestrial broadcast of sound recordings.” It said the RIAA must clear a high bar even to suggest any future harm from the authorization of digital radio. CEA said again that DAB is well established in the U.K., and the “experience” there “has not produced the results that the RIAA fears. There is no reason to believe that the results will differ in the U.S.”

“If the RIAA truly believed that there was something pertaining to the DAB service that required a unique lowering of expectations” on content protection, it should have raised such concerns whether the docket on terrestrial digital radio was established in 1999, CEA said: “CEA believes that nearly 5 years into this proceeding, it is simply too late to raise a new consumer usage paradigm, with consumers as the victims, or as the RIAA would have it, the suspects.”

Comments in the NOI and the larger IBOC rulemaking of which it was part were due Wed., and RIAA, among other parties, hadn’t been heard from by our deadline.