HRRC Stresses Importance Of Fairness to Consumers Regarding FCC DTV Action

14-Aug-02

The Home Recording Rights Coalition (""HRRC"") welcomed the Federal Communications Commission's recognition and concern that adoption of a ""broadcast flag"" as to Internet redistribution of digital television could have a significant impact on consumer rights and expectations. HRRC also welcomed the comments by Commissioners Martin and Copps, and Media Bureau chief Ken Ferree that, while focusing on broadcast issues today, the FCC still must address crucial consumer viewing and recording rights with respect to cable television.HRRC Chairman Gary Shapiro commented: ""Ever since the motion picture industry tried to enjoin the sale of consumer VCRs, various laws or regulations that would limit consumers' choices have been proposed. Even with the best of intentions, the potential for taking choices away from consumers is a matter of substantial and immediate concern. HRRC will work with the Commission to ensure that consumer rights and expectations are protected."" The FCC seeks comments on a proposal to require digital television tuners and other devices to respond to a copyright ""flag"" in broadcast content, so as to prevent unauthorized ""redistribution"" (over the Internet and possibly by other means) of the broadcast signal. To enforce such measures, the FCC seeks comment on extending its regulations to devices that connect to television reception circuitry. HRRC views any government mandate, legislative or regulatory, as a limitation on consumer sovereignty. Proponents should bear a heavy burden to show some countervailing benefit to consumers, such as access to new technology, products, or services; or freedom from legal challenge. Although private sector discussions have answered many technical questions as to the ""broadcast flag,"" a number of key issues remained unresolved. One basic question is what is meant by ""redistribution."" Some in the movie industry have favored a very broad interpretation, so as to restrict the sort of sharing among household and family members that most consumers consider reasonable and customary. HRRC strongly opposes any such interpretation. The HRRC also expressed the following concerns: * Fair use. Even a narrow understanding of ""redistribution"" is likely to result in preventing some fair use activities, such as sharing broadcast video clips in educational and dispersed family environments. Looking back almost three decades, since the VCR was introduced and movie studios tried to ban it, Shapiro observed, ""History teaches that the consumer should come first. Where technological solutions cannot approximate fair use outcomes, regulators need to give particular attention and concern to the effect on consumers."" * Competition and innovation. Stifling or chilling of technological progress, competition, and innovation should be neither an intended nor an unintended consequence of controlling redistribution of broadcast signals. * Unintended consequences. The ""broadcast flag"" initiative was begun with a clear understanding that consumers' home recording rights and practices would not be limited. Concern has been expressed that consumers could experience difficulty in, for example, playing back some recordings on existing DVD players. License and other obligations imposed on home network devices may have additional consequences. HRRC urges the FCC to develop a full record as to such issues, so that consumer rights, expectations, and convenience in these and other respects can be weighed against all other considerations. * Encoding rules. It is core HRRC doctrine that any technical mandate potentially constraining consumer rights and expectations must be accompanied by ""encoding rules"" that impose clear limitations on the use of the mandated technology. HRRC will insist that use of the ""broadcast flag"" be limited, so as never to constrain, for example, the sharing of news and public affairs programming among consumers and academic and library institutions. Where a public mandate is involved, there should be public scrutiny as to the placement in the hands of private parties, by license or otherwise, of any rules governing consumer rights . * PHILA is a threat to consumers. In congressional testimony this year, the HRRC has emphasized that cable television is an area of FCC jurisdiction in which consumers are being denied the benefits of competition, and in which their rights and expectations are most clearly at risk due to copyright measures. Anti-consumer terms in the ""PHILA"" license (""POD-Host Interface License Agreement""), required of devices connecting directly to digital cable systems, could impede viewing of high-definition programming on millions of displays consumers already own, by allowing content owners to shut off interfaces or to reduce resolution by three-fourths -- all in an effort to control home recording. Consumer use of recorders would also be directly constrained. The FCC has solicited comments in CS Docket No. 97-80, but has not yet acted to protect consumers. HRRC will continue to urge, as did Rep. Rick Boucher (D-Viginia) in a July 25 letter to Chairman Powell, that the FCC should give top priority to resolving the PHILA license issues, and enabling a free and competitive market in cable devices.  For more information about the HRRC, visit www.hrrc.org.

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