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One flag debate down, another to go

June 28, 2006 , ,

Today, the Senate rejected by one vote, a constitutional amendment to ban flag burning. At the very same time, another flag debate was raging in the House of Representatives. The Telecommunications and Internet Subcommittee of the House Energy and Commerce Committee held a hearing on the audio and video broadcast flags.

The hearing was divided into two panels – the first, on a proposed audio flag for digital broadcast and satellite radio, was very well attended and the subject of much debate between the panelists. There weren't any arguments we hadn't heard before. Mitch Bainwol of the RIAA argued that a satellite radio receiver which records radio programming and then disaggregates that programming into individual songs is akin to a download, and therefore requires a separate license. Stewart Harris, a country songwriter, claimed that without such a license, he and other songwriters will go broke. Andy Levin of Clear Channel (on behalf of the National Association of Broadcasters) argued that imposing a content protection scheme on digital broadcast radio (misnamed “HD Radio”) would kill that nascent technology, since unlike digital TV, consumers need not transition to digital radio. And Ruth Ziegler of Sirius Satellite Radio said that the RIAA's effort was part of a larger plan to limit consumers' rights to make personal home recordings, in violation of the Audio Home Recording Act.

What was different, however, was the hostility of a Subcommittee of the Commerce Committee to the industries that it regulates, namely broadcasters and satellite radio broadcasters, which both argued against the audio flag. The content industry usually does not fare as well in the Commerce Committee as it does in the Judiciary Committee, but you wouldn't have had that impression today. With perhaps four or five exceptions of the eighteen who attended, the members were overwhelmingly in favor of an audio flag technology mandate.

What this says is that the recording industry worked the subcommittee hard, and our side has an awful lot of catching up to do. While the full Committee Chairman Joe Barton joked about marking up an audio flag bill next week (not possible since Congress will be in recess at time), the debate over the audio flag is really just starting in the House. But don't forget, the Senate telecom bill has an audio flag provision in it, and should the Senate pass the bill and seek to conference it with the House version, all bets will be off.

Oh, and the second panel, on the video flag? I testified on that one. Because the first panel ran so long, only three members saw fit to stick around when it started at 5:00. Clearly, the audio flag was the topic of the day.