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[FYI] (Fwd) FC: Sen. Hollings wants FCC to implant "broadcast flag" in hardware

------- Forwarded message follows -------
Date sent:      	Tue, 23 Jul 2002 01:55:43 -0400
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: Sen. Hollings wants FCC to implant "broadcast flag" in hardware
Send reply to:  	declan@well.com

Politech archive on Sen. Hollings' related efforts:

Note the MPAA anticipates new federal laws or regulations:
>"Full implementation is expected to require a legislative and/or
>regulatory mandate."

Because who would use it otherwise?



July 19, 2002

The Honorable Michael K. Powell
Federal Communications Commission
445 12th Street, S.W.
Suite 8C453
Washington, DC  20554

Dear Chairman Powell:

         I am writing to urge that you implement a ‘broadcast flag’
solution to protect digital content delivered over the broadcast
airwaves.  I believe the Commission has the authority, pursuant to
specific statutory provisions in the Communications Act, as well as
under its general public interest authority, to implement such a
solution for the benefit of the digital television transition and
consumers across America.

         For the better part of a decade, the U.S. copyright
the consumer electronics industry, and the information technology
industry have been engaged in negotiations over how best to protect
copyrighted content transmitted over a variety of platforms, such as
DVD players, analog VCRs, digital broadcast television, and the
Internet.  Notwithstanding some limited successes (for example with
respect to copy protection for DVD players, conditional access systems
for cable and satellite distribution, and analog VCRs) these talks
have largely languished as technology has advanced.  And as technology
has advanced, copy protection schemes developed voluntarily in the
marketplace have not kept pace.  While the advance of technology has
undeniably benefitted consumers, it also has facilitated piracy.  The
content industries are understandably reluctant to provide their top
quality products in digital form in areas (such as over-the-air
digital television) where potential piracy is a real threat.

         This reluctance has real and adverse consequences for the
television transition, for consumers, and for the broadcast 
industry.  Absent robust protection, copyright owners may increasingly
restrict their best television programming to cable and satellite
networks, which are conditional access systems that can accommodate
digital rights management (“DRM”) solutions that protect content.   
As you know, Congress and the Commission have mandated that local
broadcasters construct digital facilities  at a significant cost 
premised on the notion that widespread, high quality digital content
will lead consumers to purchase digital television sets.  But
broadcast stations that have spent considerable capital to upgrade
their facilities are currently denied access to a broad consumer base
as consumers are unwilling to pay thousands of dollars for digital
television reception equipment, when there is little high quality,
digital broadcast content available in the absence of agreement on
copy protection technologies.

         In light of this growing problem, I am pleased that the
representatives of the affected industries have come together to solve
this problem.  Broad multi-industry consensus has emerged around the
appropriateness and feasibility of the ‘broadcast flag’ technology
since it was originally proposed by a coalition of the motion picture
studios and equipment manufacturers late last year.  This consensus
originated in talks organized by the Broadcast Protection Discussion
Group (BPDG), which was set up in November 2001 specifically for the
purpose of seeking input from all affected companies and interest
groups on the technological merits of the “flag” proposal.  The final
report submitted by group Co-Chairs from Intel, Mitsubishi, and Fox on
June 3, 2002 confirm that the fundamental technological aspects of the
‘broadcast flag’ proposal are now both fully understood and supported
by numerous affected industry participants.

         These developments represent a considerable achievement by
private sector.  I would particularly like to commend the consumer
electronics and information technology industry representatives for
negotiating in good faith and agreeing on the need to protect digital
broadcast content from redistribution over the Internet.  Moreover,
the representatives of the content industries warrant praise for
agreeing to a proposed technological solution that allows consumers to
make physical copies of digital content for use on compliant devices
(consumer electronics devices designed to comply with the ‘broadcast
flag’ technology), regardless of where those devices may be.  This
give and take by affected industry parties is exactly what I had hoped
to achieve through introduction of broad bipartisan legislation
earlier this year.  While we do not want to have to legislate in this
area, the industries must know that the government stands ready to
ratify consensus agreements, and to step in if no agreements can be
reached after a reasonable time is given for negotiations to move

         Indeed, additional legislation to protect digital content has
already been announced in the House, on the heels of the successful
‘roundtables’ conducted by House Energy and Commerce Committee
Chairman Billy Tauzin.  I have discussed this matter with Chairman
Tauzin, and look forward to working with him, and ranking member
Dingell on this and other critical issues associated with the digital
television transition.  Similarly, our ranking member, Senator McCain
has a long standing interest in this area and I expect that we will
work together this August toward the development of DTV legislation.

         With respect to a ‘broadcast flag,’ however, the FCC may act
absent legislation.  Such implementation is clearly authorized by
statutory provisions in the Communications Act specifically delegating
to the FCC wide authority to facilitate the digital television
transition.  For example, 47 U.S.C. § 336(b)(4) authorizes the FCC to
“adopt such technical and other requirements as may be necessary or
appropriate to assure the quality of the signal used to provide
advanced television services,” and 47 U.S.C. § 336(b)(5) grants the
FCC the authority to prescribe regulations relating to advanced
television services “as may be necessary for the protection of the
public interest, convenience, and necessity.”  It is beyond dispute
that the public interest would be served by regulations protecting
digital broadcast content; while at the same time preserving lawful
consumer use of that content such as making a physical copy for time
and/or device shifting purposes.

         Moreover, I must note that intervention is consistent with
FCC’s authority under Title I of the Communications Act, which provide
jurisdiction that is “reasonably ancillary” to its specific grants of
authority over numerous telecommunications issues.  Specifically,
Title I grants the FCC the authority “to perform any and all acts,
makes such rules and regulations, and issue such orders, not
inconsistent with this Act, as may be necessary in the execution of
its functions.”  47 U.S.C. § 154(i).

         When the Commission acts to implement a ‘broadcast flag’
it is critical that the views of all relevant interested parties,
including consumer groups, be incorporated through the standard notice
and comment process at the FCC to protect digital broadcast television
from piracy.  Any solution, and the process that led to it, must be
credible and transparent. At the same time, however, given the central
importance of broadcast content protection in expediting the digital
television transition, it is imperative that the FCC quickly arrive at
a final resolution and implementation.

         Thank you for your quick attention to this important public
interest matter.


                                   Ernest F. Hollings

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