The Chairman of the Senate Commerce Committee, Senator Ted Stevens, has released a draft of this Telecom bill (link to bill coming soon!). Weighing in at 135 pages, I guess we could say it's a “hulk” of a bill.
Unfortunately, part of the bill includes language to authorize the FCC to instate the broadcast flag, but with some interesting exceptions that Public Knowledge has said, at a minimum, would have to be part of such a tech mandate. They include:
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the transmission of short excerpts of broadcast digital television over the Internet;
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the transmission to a limited number of devices over a home or otherwise localized network
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over the Internet for distance learning purposes
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redistributing news and public affairs (except for sports)
This proposition is a step forward from previous attempts, in that it actually contemplates limitations on flag technology. However, PK still thinks these kinds of tech mandates are anti-competitive and harm consumers and innovators.
At first glance, one problem that comes up immediately is that under the redistributing news and public affairs provision, it's for programming “in which the primary commercial value depends on timeliness as determined by the broadcaster or broadcasting network.” If the broadcaster is given the gatekeeper decision of what's “timeliness,” does anyone think they're going to say the news is timely? For reasons of news and commentary under copyright law, no authorization from the copyright owner is necessary. This isn't copyright law, but that's why we asked for the exception. Even though the bill gives broadcasters a complaint process at the FCC on abuse of this kind of use of their timely news, there's a concern that fair use protections might not be extended as the FCC is not equiped to make that kind of determination.
Of course, all of this might be irrelevant because the content industry has said numerous times that they would accept no broadcast flag carve-outs. So, if they don't like it, this part of the bill won't see the light of day–or at least the exceptions won't.
Here's the full text of that section of the bill, take a look for yourself:
Subtitle C-Video and Audio Flag
SEC. 451. SHORT TITLE.
This subtitle may be cited as the “Digital Content Protection Act of 2006”.
SEC. 452. DIGITAL VIDEO BROADCASTING.
Part I of title III (47 U.S.C. 301 et seq.) is amended by adding at the end the following:
“SEC. 342. PROTECTION OF DIGITAL VIDEO BROADCASTING CONTENT.
“(a) IN GENERAL.–Within 30 days after the date of enactment of the Digital Content Protection Act of 2006, the Commission shall initiate, and within 6 months after that date conclude, a proceeding–
“(1) to implement its Report and Order in the matter of Digital Broadcast Content Protection, FCC 03-273 and its Report and Order in the matter of Digital Output Protection Technology and Recording Method Certifications, FCC 04-193; and
“(2) to modify, if necessary, such Reports and Orders to meet the requirements of subsection (b) of this section.
“(b) REQUIREMENTS.–In the regulations promulgated under this section, the Commission shall permit transmission of —
“(1) short excerpts of broadcast digital television content over the Internet; and
“(2) broadcast digital television content over a home network or other localized network accessible to a limited number of devices connected to such network; or
“(C) broadcast digital television content over the Internet for distance learning purposes;
“(2) permit government bodies or accredited nonprofit educational institutions to use copyrighted work in distance education courses pursuant to the Technology, Education, and Copyright Harmonization Act of 2002 and the amendments made by that Act;
“(3) permit the redistribution of news and public affairs programming (not including sports) in which the primary commercial value depends on timeliness as determined by the broadcaster or broadcasting network; and
“(4) require that any authorized redistribution control technology and any authorized recording method technology approved by the Commission under this Section that is publicly offered to licensees, be licensed on reasonable and nondiscriminatory terms and conditions.
“(c) REVIEW OF DETERMINATIONS.–The Commission may review any such determination described in subsection (b)(3) by a broadcaster or broadcasting network if the Commission receives a bona fide complaint alleging, or otherwise has reason to believe, that the determination is inconsistent with the requirements of that subsection or the regulations promulgated thereunder.
“(d) EFFECTIVE DATE OF REGULATIONS.–Regulations promulgated under this section shall take effect months after the date on which the Commission issues a final rule under this section.''.