Senators Who Want the Flag:
Chairman Ted Stevens: Started the hearing off by recounting his understanding of the history of the broadcast flag: a number of years ago, 11 Senators sent a letter to the FCC asking it to conduct the broadcast flag proceeding, the FCC did, and the FCC rule was struck down by the federal court which said that Congress didn't give the FCC permission. The Chairman seemed dismayed that the intent of his letter was ignored by the federal court, and would like to reinstate the FCC's rule. However, being from the remote state of Alaska, he seemed concerned about the broadcast flag's ability to hamper distance learning, like that contemplated under the TEACH Act, although Andy Setos' assurances that the broadcast flag wouldn't interfere seem to put the Chairman's mind at ease.
Co-Chairman Daniel Inouye: Made a brief opening statement in support of the broadcast flag, and only asked Andy Setos' (one of the co-inventors of the broadcast flag) a few slow-ball questions to allow Setos to explain that the mandate necessary to protect digital broadcast content.
Senator Gordon Smith: Floated the draft bill that was the topic of most of the discussion. He said he was committed to passing this legislation and willing to work a “balanced compromise.”
Senators Who Asked Good Questions:
Senator Conrad Burns: The Senator seemed also concerned about educational institutions and consumers ability to use television media. Representing Montana, he too was concerned about distance learning and people's ability to excerpt portions of television shows under the broadcast flag.
Senator Ben Nelson: Thoughtfully asked Leslie Harris of CDT to clarify how she thought the FCC's mandate should be changed be Congress–how the process could be changed to allow for fair uses and not hamper innovation. He seemed to agree with her that these changes had to be expressly written out in any legislation, not just delegated to the non-expert agency–the FCC–which he fondly called “one of those alphabet agencies.”
Senator Who Was an Innovation and Consumer Champion:
- Senator John Sununu: Finally, a Senator who essentially asked the question, “Do we really need a government mandate here?” He walked through a quick history of innovation (radio, TV, VHS, TiVo) and how the lack of government legislation allowed those technologies to flourish. He said clearly that that every time Congress introduces a mandate, its only assured outcome is to stifle innovation. Not a single person in the hearing room could dispute this claim. He criticized both witnesses and Senators for jumping the gun by talking not only about draft legislation, but about hypothetical exceptions to the legislation. He dared to rhetorically ask the group why legislation was needed at all and why market solutions couldn't fill the gap?
It was thoroughly refreshing to have at least one Senator thinking out-of-the-box (is it sad that calling into question whether any legislation is needed is dubbed out-of-the-box?!) and standing up for the market for innovation and consumers.
Thank you Senator John Sununu!
Keep checking this space for an easy way you can thank the Senator and encourage your own Senator to likewise think “out-of-the-box”
As for the “audio” broadcast flag, everyone was a skeptic. Chairman Stevens asked Mitch Bainwol why it was a problem for him to essentially “TiVo” satellite or HD radio, and was unsatisfied with Bainwol's response that someone should have to pay extra for that.
Senator Smith revealed his cards on the audio broadcast flag portion of his draft legislation by suggesting that it could be used as exaction by the RIAA to bring the NAB and national satellite radio providers to the copyright licensing table.
Again, Senator Sununu broke it down for everyone to understand: the issue surrounding audio broadcast flag has more to do with performance licensing than it does with content protection. Touching on his conservative/libertarian themes of less government intrusion, he suggested that the problem was actually a deficiency of government intrusion into copyright licensing, not one of copy-controls.
All-in-all, today's hearing was a good first step in vetting the issues surrounding broadcast flag. Kudos to Leslie Harris of CDT for representing well the consumer interest.
In case you missed them, here are more quick links:
Here is PK's statement that we submitted for the record.