[opendtv] News: Senate Takes Up the Broadcast Flag

  • From: Craig Birkmaier <craig@xxxxxxxxx>
  • To: OpenDTV Mail List <opendtv@xxxxxxxxxxxxx>
  • Date: Mon, 30 Jan 2006 07:48:26 -0500


Date posted: 2006-01-27

Senate Takes Up the Broadcast Flag

The chairman of the Senate Commerce Committee intends to push a bill 
that would give the FCC authority to implement the broadcast flag.

At a hearing Tuesday, Sen. Ted Stevens (R-Alaska) said, "We are going 
to push for a broadcast flag bill; at the very least, we'll give the 
FCC the authority to do it."

Witnesses who oppose the flag testified at the hearing that it would 
impede distance learning and limit content use by libraries. Leslie 
Harris, executive director of the Center for Democracy and 
technology, envisioned a slippery slope of government technology 

"If the flag regime is enacted, other requests for technology 
mandates will surely follow," she said.

The flag mandate is actually a consequence of the government's 
biggest technology mandate to date--the DTV transition. Digital 
transmission of video content is what got Hollywood howling in the 
first place, because presumably the higher quality of digital versus 
analog content would be more conducive to piracy. Flag foes note that 
digital and HD content has exploded without the flag, and that TV 
show DVD sales are growing.

Andy Setos, president of engineering for the Fox Entertainment Group, 
said that without the flag, local broadcast stations would be at a 
competitive disadvantage to cable and satellite, both of which are 

The FCC mandated the broadcast flag in late 2003 and ordered that 
digital OTA receivers recognize the broadcast flag by July 1, 2005. 
The order stressed that the flag would not force consumers to buy new 
equipment, nor restrict copying, but only prevent mass distribution 
over the Internet.

At the time, Thomas Patton, vice president of government relations 
for Philips, said it was a tight deadline: "It will be a very hard 
challenge for the FCC, to examine and possibly select technologies 
that actually meet the objectives--to stop free Internet distribution 
and not interfere with fair-use rights."

Nine months later, Philips was a partner in developing one of 13 flag 
technologies approved by the FCC. Then just weeks before the flag 
order was to go into effect, the U.S. Court of Appeals in Washington 
ruled that the FCC didn't have the authority to mandate it.

Neither the Senate bill nor the original FCC order addressed the 
dreaded "analog hole." Because the broadcast flag is simply the 
addition of bits in the DTV stream, it has no effect on analog 
outputs, through which a reasonably tech-savvy person could record HD 
content, redigitize it and blast it out over the Internet.

Last November, a House subcommittee held a hearing on flag and analog 
hole draft legislation. That bill, like the Senate bill, would give 
the FCC the authority to mandate the flag. The analog hole part was a 
bit more amorphous. It relied heavily on a technology referred to as 
"VEIL," which stands for "video encoded invisible light."

"VEIL is largely unknown as far as its cost, functionality, and 
potential interference with ordinary and legal consumer product 
uses," the CEA's Michael Petricone testified at that hearing.

There is still a question of what content should or should not be 
flagged. Jonathan Band, counsel for the American Library Association, 
told the Senate committee that if it mandated the flag, it ought to 
also carve out "exceptions" for news, public affairs and 
documentaries. The original FCC ruling covered all content, prompting 
Commissioner Michael Copps to dissent, in part, to the order. Yet how 
exceptions would work is anyone's guess. Given that no flag "on/off" 
automation software on the market, stations would have to put a body 
on the bitstream device.

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