The FCC Seeks Comments Regarding Digital Broadcast Copy Protection

The Federal Communications Commission ("FCC") on August 8, 2002 issued a Notice of Proposed Rulemaking related to digital broadcast copy protection. Digital copy protection attempts to prevent the unauthorized copying and redistribution of digital media. The FCC said that the lack of such digital copy protection may be impeding the transition to digital television and now seeks comments on whether it should intercede and mandate the use of a copy protection mechanism for digital broadcast television.

The Broadcast Protection Discussion Subgroup of the Copy Protection Technical Working Group, consisting of more than 70 representatives of the consumer electronics, information technology, motion picture, cable and broadcast industries, came to a consensus on the use of a "broadcast flag" standard for digital broadcast copy protection. This standard would mark digital broadcast programming to limit the copying of such programming aired by broadcast-TV stations. However, there is no universal agreement on the use and implementation of the flag, nor is there any agreement on how to enforce the digital copy protection.

Initially, the FCC requests comments on whether a regulatory copy protection regime is necessary for digital broadcast television. More specifically, the FCC is asking whether quality digital programming is being withheld because of concerns over the lack of digital copy protection, and if so, the nature and extent of the piracy concerns. The FCC seeks comment in particular regarding the following:

• Is the broadcast flag the appropriate technological model to be used or are there other content control marks available?
• Will the broadcast flag protect digital broadcast content from improper redistribution?
• Should the government mandate that broadcasters and content providers embed the broadcast flag (or other content control mark) within digital broadcast programming?

• Should the FCC mandate that consumer electronics devices recognize and give effect to the broadcast flag (or other content control mark)?
• Should the mandate (if necessary) include devices other than digital television broadcast receivers?
• What is the appropriate point for digital broadcast copy protection to begin in consumer electronics devices?
• Would a digital broadcast copy protection system be effective in protecting digital broadcast content from improper distribution?
• Would the broadcast flag (or other system) work for digital broadcast stations carried on cable or direct broadcast satellite systems?
• Should the FCC mandate the use of specific copy protection technologies in consumer electronics devices? If so, how would a particular technology receive approval for use in customer electronics devices for digital broadcast copy protection purposes and who would make that decision?

• Would a broadcast flag or other requirements to protect digital content interfere with consumers’ ability to send copies of digital television content across secure digital networks?
• What is the appropriate scope of protection to be accorded digital television broadcast content?
• What is the impact of a broadcast flag requirement on consumers’ existing and future electronic equipment?
• What is the potential effect, if any, of a broadcast flag requirement on the development of new consumer technologies?

The FCC must receive any comments on these issues by October 30, 2002 and any reply comments by December 13, 2002.