September 18, 2020

Broadcast Flag Scorecard

Before the FCC issued its Broadcast Flag Order, I wrote a post on “Reading the Broadcast Flag Rules”, in which I recommended reading the eventual Order carefully since “the details can make a big difference.” I pointed to four specific choices the FCC had to make.

Let’s look at how the FCC chose. For each of the four issues I identified, I’ll quote in italics my previous posting, and then I’ll summarize the FCC’s action.

First, look at the criteria that an anti-copying technology must meet to be on the list of approved technologies. Must a technology give copyright owners control over all uses of content; or is a technology allowed [to] support legal uses such as time-shifting; or is it required to support such uses?

The Order says that technologies must prevent “indiscriminate redistribution”, but it isn’t precise about what that term means. The precise scope of permissible redistribution is deferred to a later rulemaking. There is also some language expressing a desire not to control copying within the home, but that desire may not be backed by formal requirement.

Verdict: This issue is still unresolved; perhaps the later rulemaking will clarify it.

Second, look at who decides which technologies can be on the approved list. Whoever makes this decision will control entry into the market for digital TV decoders. Is this up to the movie and TV industries; or does an administrative body like the FCC decide; or is each vendor responsible for determining whether their own technology meets the requirements?

This issue was deferred to a later rulemaking process, so we don’t know what the final answer will be. The FCC does appear to understand the danger inherent in letting the entertainment industry control the list.

The Order does establish an interim approval mechanism, in which the FCC makes the final decisions, after a streamlined filing and counter-filing process by the affected parties.

Verdict: This issue was deferred until later, but the FCC seems to be leaning in the right direction.

Third, see whether the regulatory process allows for the possibility that no suitable anti-copying technology exists. Will the mandate be delayed if no strong anti-copying technology exists; or do the rules require that some technology be certified by a certain date, even if none is up to par?

The Order doesn’t address this issue head-on. It does say that to qualify, a technology need only resist attacks by ordinary users using widely available tools. This decision, along with the lack of precision about the scope of home copying that will be allowed, makes it easier to find a compliant technology later.

Verdict: This issue was not specifically addressed; it may be clarified in the later rulemaking.

Finally, look at which types of devices are subject to design mandates. To be covered, must a device be primarily designed for decoding digital TV; or is it enough for it to be merely capable of doing so? Do the mandates apply broadly to “downstream devices”? And is something a “downstream device” based on what it is primarily designed to do, or on what it is merely capable of doing?

This last issue is the most important, since it defines how broadly the rule will interfere with technological progress. The worst-case scenario is an overbroad rule that ends up micro-managing the design of general-purpose technologies like personal computers and the Internet. I know the FCC means well, but I wish I could say I was 100% sure that they won’t make that mistake.

The Order regulates Digital TV demodulators, as well as Transport Stream Processors (which take the demodulated signal and separate it into its digital audio, video, and metadata components).

The impact on general-purpose computers is a bit hard to determine. It appears that if a computer contains a DTV receiver card, the communications between that card and the rest of the computer would be regulated. This would then impact the design of any applications or device drivers that handle the DTV stream coming from the card.

Verdict: The FCC seems to have been trying to limit the negative impact of the Order by limiting its scope, but some broad impacts seem to be inevitable side-effects of mandating any kind of Flag.

Bottom line: The FCC’s order will be harmful; but it could have been much, much worse.

Comments

  1. Ed wrote –> “It appears that if a computer contains a DTV receiver card, the communications between that card and the rest of the computer would be regulated. This would then impact the design of any applications or device drivers that handle the DTV stream coming from the card.”

    –> Not surprisingly, Microsoft’s latest standards for the API layer between sound processing cards and the OS have recommendations for DRM support. Of course, these have been distributed to customers for almost a year. How could they have known that the FCC restrictions would play out this way? 🙂