Does the White House know?
The FCC has filed a remarkable brief in the broadcast flag challenge pending before the DC Circuit. (Public Knowledge is leading the plaintiffs in this matter.)
Some background: Back in November 2003, the FCC issued an order (the broadcast flag rule) saying that all devices capable of receiving a digital TV signal (or storing DTV files) would have to comply by July 2005 with a set of technical mandates.
The broadcast flag rule, distilled to its essence, is a mandate that all consumer electronics manufacturers and information technology companies ensure that any device that touches digital television content encrypt that content and protect it against unauthorized onward distribution.
In order to make this happen, the FCC has established a new and extraordinarily broadregulatory regime that mandates the use of “authorized” content protection technologies by virtually every consumer electronics product and computer product — including digital television sets, digital cable set-top boxes, direct broadcast satellite receivers, personal video recorders (PVRs), DVD recorders, D-VHS recorders, and computers with tuner cards.
In the context of both the flag rule and the IP-enabled services proceeding that was the subject of Bellhead/Nethead earlier this fall, the FCC has said that it has “ancillary” jurisdiction to act. Translation: “Congress hasn't said that we DON'T have the power to do this, so we're going to go ahead on the assumption that we do.”
The FCC's brief, filed in response to PK's challenge to FCC's jurisdiction in the flag matter, is breathtaking. FCC's position is that its Act gives it regulatory power over all instrumentalities, facilities, and apparatus “associated with the overall circuit of messages sent and received” via all interstate radio and wire communication. That's quite a claim.
FCC believes that it has simply been restraining itself up until now. Since 1934 (or 1927, depending on how you count), FCC has had power over all equipment used in connection with radio and wire transmissions. When the need arises, it can exercise its authority — including its authority over PCs, PVRs, and any new gizmo that has something to do with a communication of some sort.
As the FCC said in the November 2003 order,
“[E]ven though this may be the first time the Commission exercises its ancillary jurisdiction over equipment manufacturers in this manner, the nation now stands at a juncture where such exercise of authority is necessary.” In other words, the FCC is willing to do whatever it takes to make the DTV transition happens; it believes the flag is necessary to this transition, and not having explicit jurisdiction to act isn't enough of a reason not to act.
FCC can't deny that every single time it has made a rule affecting consumer electronics devices it has had explicit authority from Congress to do so. But its brief argues that none of these statutes “demonstrate[] a congressional understanding that the FCC lacks general rulemaking authority over television receiving equipment.” (”Congress didn't tell us we couldn't act.”)
The thing is, this rule doesn't merely affect TV receiving equipment. It affects everything that RECEIVES digital files from TV receiving equipment as well — every device inside any home network. It affects the open-platform PC. It's a sweeping rule. And now FCC's jurisdiction to enact this rule is being argued in sweeping terms.
Why should we care about all of this? We should care because if the FCC has the power to act on anything that has something to do with communication, we have only the FCC's self-restraint to rely on when it comes to all internet communications. We should care because we want open platforms and open communications to continue. We should care because the future of the internet is at stake — the FCC will use its “ancillary jurisdiction” to impose “social policies” on any services that use the internet protocol, and will point to its broadcast flag action as support for its jurisdictional claims.
I'm wondering if the White House knows what is going on at the FCC.
Comments
2 Responses to “Does the White House know?”
Got something to say?
what i love to do in these circumstances is to xxxx the law[ma/brea]kers over by sending them emails that will cause them to get into trouble over their own law.
what you do is this:
1) make your own video.
2) make up your own [stupid] “protection” mechanism which could be an HTML message which has the words “I CLAIM THAT THE BROADCAST FLAG IS SET IN THIS CONTENT!” in it.
3) send an email to the FCC to a real recipient and a fake one, with your [stupid] “protection” mechanism and your copyright material attached.
4) ensure that the return address of the email is to a public forum with the maximum distribution that you can possibly reach.
5) make sure your own email address is included in the list of recipients, and that you have some other recipients as well (otherwise it's not being broadcast, is it???)
6) make it clear in the email that you ARE NOT expecting and DO NOT WANT a reply, and that any unauthorised distribution of your copyright and broadcast-protected material is illegal.
when the fcc's smtp server returns your message to the public mailing list of your choice, including your material, sue the xxxx out of them for illegally broadcasting copyright material
From my reading of the FCC broadcast flag rule making, I think your post contains a couple of errors, as follows:
You say “The broadcast flag rule, distilled to its essence, is a mandate that all consumer electronics manufacturers and information technology companies ensure that any device that touches digital television content encrypt that content and protect it against unauthorized onward distribution.” Yet in paragraph 24, after discussing various protection scheme alternatives, including encryption at the source and in retransmission, the Commission concludes “As such, we decline to adopt encryption at the source as a content protection mechanism for DTV broadcasts.” and goes on to say in paragraph 40 “As such, we decline to adopt compliance and robustness rules relating to consumer modulators.” The rule making recognizes the inherent differences between devices which are used to recieve and view flagged broadcast DTV content, and those which are used to record, edit, and retransmit it, perhaps over data networks, and directs its focus accordingly, to the question of “redistribution control.” That focus is clearly stated in paragraph 35, for the narrow class of equipment intended for the reception of over the air broadcasts, which is a diminishing distribution channel: “We further note that we intend our redistribution control regulations to apply to any device or piece of equipment