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For Immediate Release
Three leading consumer groups, Consumer Federation of America, Consumers Union and Public Knowledge, advised Congress not use budget or appropriations legislation to give the Federal Communications Commission (FCC) permission to impose content controls on digital television.
In a Sept. 19 letter to Capitol Hill, the groups said: "We are concerned that Congress may choose to rush into law an authorization for the broadcast-flag scheme without fully considering both the consumer impact of the scheme and the fact that the scheme will require giving the federal government an unprecedented degree of control over digital economy." The letter was sent to the leadership of both chambers, as well as to members of both Appropriations, Budget and Commerce committees.
The letter noted that Congress should take the time to consider more closely the "potential pitfalls" of a broadcast flag scheme and the control it would give to the FCC over technology, the harm to educators. The letter added that the broadcast flag scheme would be "superfluous in light of the content-protection tools the content industry now has."
The text of the letter (sample to Sen. Stevens) follows:
September 19, 2005
Senator Ted Stevens
Senate Commerce Committee
Russell Senate Office Building
Re: Hearings Required on Potential "Broadcast Flag" Legislation
Dear Chairman Stevens,
Public Knowledge, Consumers Union, and Consumer Federation of America are writing to you today to urge you not to pass as part of an appropriations or budget package any legislation giving the Federal Communications Commission (FCC) the authority to impose its "broadcast-flag" technology mandate.
We ask you to consider the potential pitfalls of the broadcast flag scheme which:
- Will give the FCC unprecedented control over technology
- Will harm educators and consumers
- Will be superfluous in light of the content-protection tools the content industry now has.
We recognize that you and other members of Congress have been told that the broadcast-flag scheme, together with legislative authorization for the Federal Communications Commission to implement it, are necessary to hasten the transition to digital television through recovery of the currently used "analog" television broadcast spectrum.
We believe, however, that you have heard only part of the story. As a result, we are concerned that Congress may choose to rush into law an authorization for the broadcast-flag scheme without fully considering both the consumer impact of the scheme and the fact that the scheme will require giving the federal government an unprecedented degree of control over digital economy. For these reasons, we believe it is necessary for Congress to hold hearings on the broadcast-flag scheme before any authorizing legislation is proposed or enacted.
As you may know, Public Knowledge, together with other consumer and public-interest organizations, challenged the FCC's the broadcast-flag regulation in the D.C. Circuit Court of Appeals. On May 6, 2005, that court in the strongest possible terms unanimously struck down the regulation, on jurisdictional grounds.
The jurisdictional issues in this case underscore the substantive problems with the broadcast-flag scheme; specifically, any jurisdictional grant to the FCC of the power to implement a broadcast-flag regulation necessitates giving broad, unprecedented power to the FCC to dictate product design, and to determine the future course of our digital economy. By imposing government-agency control over the design of digital electronics and, potentially, over computer operating systems and other software, the scheme will inevitably slow or stifle the development of innovative consumer electronics and other products. The Commission is not equipped by experience or tradition to be the gatekeeper on this unprecedentedly broad range of technologies.
Even if Congress nonetheless finds that digital-television faces an infringement threat that needs to be addressed, it should also find that there are alternative techniques for protecting television content that do not require putting the FCC in control of the design of almost all digital products, everywhere, that might conceivably contain or transmit digital television.
A full hearing of the issues surrounding Internet piracy of television also would show that content owners now have all the legal tools they need to pursue, punish, and deter infringers of television and other content. The passage of the Artists Rights and Theft Prevention (ART) Act, along with the U.S. Supreme Court's decision in the MGM v. Grokster case are only the most recent additions to the legal solutions the content industry has at its disposal.
The tenuous argument for mandating this technology should be weighed against the disruptions to consumers, who will likely face a compatibility nightmare. Because the flag-compliant technologies the FCC approved are not designed to work with each other, consumers will have to make certain that all of their devices use the same content-protection technology.
As the appellate court found, educators and librarians also will have difficulties using DTV material under the broadcast-flag scheme. On balance, the broadcast flag scheme is not worth the trouble and confusion in the marketplace it will cause.
We do not oppose all digital-rights management. Our view is that any government policy calling for technological protection of content should be should be designed so as (i) to rely on free-market standard-setting to the greatest extent possible, (ii) to protect long-standing consumer interests and expectations, (iii) to promote innovation, and (iv) to uphold the traditional "copyright balance" between copyright holders and the public interest. The broadcast flag fails all of these tests.
Congress would be able to more accurately understand the issues surrounding digital-television copyright protection only if these issues are given an adequate amount of scrutiny. Simply inserting broadcast-flag language into a budget, spending or other bill is not adequate. Such a hurried action will certainly lead to greater problems later than the ones intended to be fixed now.
Consumer Federation of America
Senior Director, Public Policy and Advocacy
Gigi B. Sohn
Public Knowledge is a public-interest advocacy and education organization that seeks to promote a balanced approach to intellectual property law and technology policy that reflects the "cultural bargain" intended by the framers of the constitution. More information available at: http://www.publicknowledge.org