‘Flag’ Ruling’s Impact on DTV Transition Bill Unclear

Many look to the MPAA for a signal as to Hollywood’s intent. Pres. Gigi Sohn of Public Knowledge, which was in the winning coalition in the case, told reporters Fri. the MPAA is “not even being coy about” its seeking a law that reinstates the flag by granting the FCC jurisdiction that the court ruled the Commission lacked.

CE makers Philips and Thomson immediately vowed support for an MPAA bill, if it is crafted narrowly. But the MPAA and others in the high-stakes game were playing it close to the vest.

Not all CE companies are willing to help Hollywood, even if its bill is narrow. There’s great diversity within CE on the broadcast flag and the year-long appeal to throw it out. No CE companies filed briefs in the case. Nor did CEA, which has said little more about the next phrase than to hail the decision as typifying judicial wariness about excessive FCC authority. CEA has voiced hope that nothing will derail DTV legislation aimed at setting a firm data for the shutoff of analog service.

The broadcast flag issue “will be front and center in the DTV fight because obviously the broadcast industry will claim they can’t move to digital without protection of their products,” said Gene Kimmelman, senior dir.- public policy at Consumers Union. He predicted “a good balanced debate in Congress, but I can guarantee you this is going to be a major piece of the DTV legislation.”

Sohn said if Congress “starts to go down the road of giving broad powers over new technologies and communications, who knows what’s next.” She urged Congress “to look at this case more broadly than just being about digital television.” Congress needs to be made aware that broadcast flag is “bad policy” because “it can’t be enacted narrowly,” said Mike Godwin, Public Knowledge legal dir. He called broadcast flag “a Rube Goldberg scheme” whose scope is too sweeping across “a huge range of consumer electronics and IT devices.” If Congress wants to guard broadcast content, there may be better mechanisms that the FCC never seriously considered and whose enactment won’t require going back to the Commission, Godwin said.

Antiflag forces raised an “abuse of discretion” challenge against the FCC at the appeals court, but the court never ruled on that issue because it rejected the broadcast flag on jurisdictional grounds, Sohn said. This means the “abuse of discretion” challenge could be raised again, she said. The basis of such a challenge, she said, is that the Commission is “not supposed to make regulations without one whiff of evidence that there’s a problem.” She traced the broadcast flag’s problems to the false assumption “that content needs to be protected -- but based on what evidence? Hollywood did not provide one whiff of evidence that anybody is pirating high-definition television content, or that it’s going to happen imminently. So I disagree with the assumption that there’s a problem. This is not like file-trading of music. This is not a problem. They did not prove a problem. This gives us, I think, even a greater leg to stand on.”

Fred von Lohmann of the Electronic Frontier Foundation said “every reasonable expert” who has examined the broadcast flag admits it would do nothing to stop posited piracy of DTV content. “What the broadcast flag is about is allowing motion picture companies to control the development of new technologies,” von Lohmann said. “It’s not about protecting content, it’s about slowing and controlling innovation. That’s what we hope Congress will reject once they take a look at this.”

But Thomson, which supports the broadcast flag and has said it would support the MPAA in seeking a narrowly crafted bill to reinstate it, has a different take. If the industries that drafted the ATSC standard had it to do over, “hindsight always being 20/20, I'm sure that encrypting terrestrial broadcasting would have been on the agenda,” said Thomson Vp-Govt. Relations Dave Arland. “But when the standard for ATSC was adopted, it was in a pre-Napster world, when no one anticipated that the Internet would become such a powerful force.” Saying the court didn’t throw out the broadcast flag as a bad idea, Thomson is hopeful a bill “can be enacted in a quick way,” Arland said. That’s because “we've invested a lot in the idea of protecting content, and we do believe protecting terrestrial content is an important mission, and something that does need to happen.”

“There are still serious First Amendment problems with the broadcast flag regime, particularly as it applies to open-source software, which the courts have recognized as being expressive, and thereby subject to First Amendment protections,” EFF’s von Lohmann said. A First Amendment challenge might be another option if Congress grants the FCC authority, he said: “We won’t know, until if and when Congress chooses to act, whether they will choose a more sensible course. But if they choose a course that is as bad as the one the Commission has chosen, then there’s nothing in this ruling that would bar a separate challenge under different grounds, including potentially the First Amendment.”