PK: Lots on Broadcast Flag and Sununu

-------- Original Message --------
Subject: In the Know - January 31, 2006
Date: Tue, 31 Jan 2006 14:23:06 -0500 (EST)
From: Public Knowledge <[email protected]>
To: [email protected]


****************************************************
 In the Know -- a bimonthly Public Knowledge update
****************************************************

January 31, 2006

Contents:

* Gigi Hill Testimony Postponed
* Sununu Comments Highlight Senate Broadcast Flag Hearing
* PK Weighs In on Flag


===============================
 Gigi Hill Testimony Postponed
===============================

We had been invited to testify before the Senate Commerce
Committee on Jan. 31 on the issue of video franchising.  That's
the question about whether telephone companies would have to
hopscotch around the country getting permission from each city
and county to offer cable-like programming services.  Cable
companies have been negotiating these local franchise agreements
for decades.

At the last minute, the hearing was postponed, and a new date
hasn't yet been set.  The change  might have had something to do
with a vote on the Senate floor for Supreme Court nominee Judge
Samuel Alito.

Our prepared testimony endorsed a national franchise for the
phone companies, so they don't have to go to every city and
county, because that would lead to consumers getting more choice
sooner.  Local authorities would still get their franchise fees.

At the same time, however, we endorsed the national franchise
only if Congress requires the telephone companies to have a "net
neutrality" requirement.  More in our next issue.


==========================================
 Sununu Questions Need for Broadcast Flag
==========================================

Sen. John Sununu (R-N.H.) put a welcome twist on the familiar
debate over the broadcast flag last week.  At the Jan. 24 Senate
Commerce Committee hearing, Sununu departed from the usual
Senatorial script that assumes the need for the content
controls.  The "broadcast flag" is a bit of coded instruction in
over-the-air digital TV signals that determine whether the
content can be stored, copied or forwarded, and under what
conditions. The "audio flag", also discussed at the hearing,
would be as-yet-undetermined content controls on digital radio,
including satellite radio.

The Federal Communications Commission's (FCC's) rule establishing
the flag was overturned by the U.S. Court of Appeals for the
District of Columbia Circuit in a suit brought by Public
Knowledge and eight other public interest and library groups. 
The hearing was the latest step in the content industry's
campaign to have the flag rule restored.

During his time for questions on the TV-related part of the
hearing, Sununu went right to the heart of the matter, saying
Senators should "refocus on the fundamental question whether a
flag is needed in the first place."  Sununu said there have been
many periods of innovation and technological change, ranging from
radio threatening performers, through the advent of video tape,
cable, CDs and DVDs.  And yet, he said, he didn't know of a case
in which Congress had discussed a "dramatic step where the
federal government legislatively mandates a specific type of
technology" like this one.  "Maybe the sky really is falling this
time, but it's worth suggesting some skepticism, a little bit of
doubt," Sununu said.  (He might also have challenged the basic
premise of the broadcast flag -- that digital programming will be
withheld -- but more on that in our statement in the next story.)

Sununu also scored a few points during the portion of the hearing
related to the alleged need for restrictions on digital radio,
whether satellite-based like XM or Sirius, or terrestrial-based
digital radio. Mitch Bainwol, head of the Recording Industry
Association of America (RIAA), said he didn't mind if listeners
taped music for time shifting, but he objected to the storage
capabilities that consumers would have with digital radio.  So,
Sununu said, if XM plays three songs, I can listen to the songs
in the order that XM played them, but not one at a time, or
perhaps in different order?  The answer was, yes, you have to
listen to the songs in the order in which the were played, as
Bainwol said he was concerned about the "disaggregation"
capabilities of digital radio.  Bainwol was alone in his defense
of the radio content controls.  Gary Shapiro, president of the
Consumer Electronics Association, said there was no need for it,
and Dan Halyburton, testifying for the National Association of
Broadcasters, said a radio control scheme would derail the
roll-out of digital broadcast radio and make thousands of digital
receivers obsolete.

Also at the hearing, Leslie Harris, the executive director of the
Center for Democracy and Technology, gave a strong presentation,
saying the "risks to innovation are substantial" from
implementing a broadcast flag.  Leslie raised the dangers of
"significant government regulation of technical design" for any
number of devices and didn't want the Commission to be "in the
business of being the arbiter between powerful incumbents and new
entrants."

You can watch the hearing and read the prepared statements of the
witnesses at the hearing here:
  http://commerce.senate.gov/hearings/witnesslist.cfm?id=1704

Here's CNET's take on the hearing:
 
http://news.com.com/Senate+may+hoist+broadcast+flag+again/2100-1025_3-6030454.html


==========================
 PK Submits Views on Flag
==========================

We weren't asked to testify on the broadcast flag and radio
controls, but PK submitted testimony for the record of the
hearing that allowed our opposition to be part of the
proceedings.

In our statement, Gigi noted that the recently concluded Consumer
Electronics Show in Las Vegas, attended by a number of
legislators and staff, featured the best in technological
innovation, much of it aimed at allowing viewers more ways to
watch TV.  We don't want that creativity and imagination
threatened.

The core argument of those pushing for the broadcast flag is that
without content protection, there will be no high-value digital
TV programming.  The problem with that argument, as Gigi pointed
out, is that there already is high-value digital TV programming,
even without a broadcast flag:  "First, broadcasters are making
'high value' content available for HDTV or, 'in HD' -- 50% of TV
shows, including 66 % of prime time programming, is broadcast in
high definition. A number of 'high value' sports programming
broadcasts, including Monday Night Football, the Super Bowl, the
NBA Finals, the NCAA Final Four college basketball championship,
Major League Baseball's All-Star Game and World Series games, all
NBC NASCAR races, the U.S. Open golf tournament, and the
Olympics, are broadcast in HD along with many other select
sporting events throughout the year."  We note that Viacom
threatened in 2002 to withhold programming if a flag wasn't in
place.  Obviously, they didn't follow through.

We also note that, quoting the Congressional Research Service, a
broadcast flag would limit lawful uses of copyrighted content
while giving the government unprecedented power over technology.

In addition, we argued that content controls would hurt digital
radio consumers and technology.  We also argued against
legislation that would foreclose consumers from recording TV on
analog devices.

Read our full statement here:
 
http://www.publicknowledge.org/news/letters/gbsohn-statement-20060124


--------------------------------------------------------------------
 Please support PK:  Last year was a great year for you and PK. 
 We won our broadcast flag case.  We testified before Congress on 
 crucial issues like the broadcast flag and fair use and continue 
 to develop excellent relationships with Capitol Hill.  This 
 year, the flag, digital radio content controls, and closing the 
 analog hole will be front and center on the content industry's 
 agenda -- and on ours. We're right in the middle of the next big 
 issue -- the telecom legislation that will start moving early 
 this year.

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Briefly: Consumers Union, Consumer Federation of America (CFA)
and Free Press released a survey finding significant public
concerns about threats to the Internet.  In their study, 72% of
respondents agreed that cable and telephone companies should
operate their networks in a neutral manner.  At the same time,
less than half, 47%, believe those companies would voluntarily
refrain from blocking or impairing services. Speaking at the
press conference to announce the results on Jan. 18, FCC
Commissioner Michael Copps said, "Our open, vibrant and
free-wheeling Internet is the last place where we should tolerate
gatekeeper controls.  It wasn't built to be that way and we must
not allow it to develop that way."  Read the study here:
  http://www.consumerfed.org/pdfs/net_neutrality_poll.pdf


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