Public Knowledge and Consumers Union Oppose FCC Rulemaking for “Digital Radio Broadcast Flag”
Public Knowledge and Consumers Union Oppose FCC Rulemaking for “Digital Radio Broadcast Flag”
Public Knowledge and Consumers Union Oppose FCC Rulemaking for “Digital Radio Broadcast Flag”

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    For Immediate Release

    The Federal Communications Commission is due to issue a notice tomorrow (April 8) indicating its intention to consider conducting a rulemaking on copy-protection policies for Digital Audio Radio Service (DARS). The policy, if adopted, would be the radio equivalent of the TV broadcast flag.

    This afternoon, Public Knowledge and Consumers Union sent letters to FCC Chairman Michael K. Powell and the other Commissioners urging the Commission to drop the DARS issue from the notice of proposed rulemaking and to consider it, if at all, as a Notice of Inquiry.

    “There is no reason for the FCC to create a broadcast flag for radio. The record companies have done nothing to establish that digital radio is a potential threat to record sales or a potential source of content for Internet file-sharers,” said Mike Godwin, senior technology counsel for Public Knowledge. The text of the letter follows:

    April 7, 2004

    The Hon. Michael K. Powell
    Federal Communications Commission
    445 12th St., S.W.
    Washington, D.C. 20554

    Dear Mr. Chairman,

    We have learned that the Commission may consider at its next meeting a Notice of Inquiry (NOI) or Notice of Proposed Rulemaking (NPRM) that will address Digital Audio Radio content protection.

    We also understand that this NOI/NPRM will center on proposals advocated by the Recording Industry Association of America (RIAA) that, while nominally concerned with distribution over the Internet, in fact will seek broader restrictions on digital copying and storage of content. In essence, we understand, the RIAA is seeking a “radio equivalent of the broadcast flag” designed to prevent consumer recording of broadcasts.

    Public Knowledge and Consumers Union urge that the Commission avoid a rush to judgment in this matter, and that the Commission consider the question of mandatory content protection for digital radio in a Notice of Inquiry rather than in an NPRM, if at all.

    As a purely factual matter, inadequate groundwork has been laid for an NPRM relating to content protection for digital audio radio — far less groundwork even than was done in the run-up to the Broadcast Flag regulation for digital television. Unlike the Broadcast Flag proceeding, for example, we have here no specific technological proposal to consider. Nor is there any call from members of Congress that the Commission act quickly. Moreover, Commission action to protect digital radio content will do nothing to increase the availability of spectrum — radio broadcasters will use the same spectrum for digital radio (and the same amount of spectrum) that they use now for analog radio. Finally, there is literally no evidence at all associating digital radio broadcasting with peer-to-peer file-sharing of music or other content.

    As the recent workshop held by Commission staff clearly showed, there are neither pressing technological issues nor spectrum-related issues that require the Commission's immediate action to protect digital radio content. While we welcome a more in-depth discussion of the issue, the Commission should avoid deciding prematurely that the question of content protection for radio broadcasts is one that merits a rulemaking. Not nearly enough evidentiary spadework has been done for a rulemaking proceeding, and, as we saw in the workshop, there is broad skepticism among the majority of stakeholders whether the case for any rulemaking aimed at protecting radio content has been made.


    Michael Godwin
    Senior Technology Counsel
    Public Knowledge

    Chris Murray
    Legislative Counsel
    Consumers Union

    Contact Info
    Art Brodsky
    Communications Director
    Public Knowledge
    office: (202) 518-0020 x103
    cell: (301) 908-7715


    Public Knowledge is a public-interest advocacy and education organization that seeks to promote a balanced approach to intellectual property law and technology policy that reflects the “cultural bargain” intended by the framers of the constitution.

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