One Nation Under Guard From Possible New Legislation On Digital Radio
There’s an old saying referring to Congress that goes: “Whatever they’re talking about, they’re talking about money.” The recent congressional action on content protection for digital radio has been no exception.
For those that haven’t been following this, here’s a quick review of recent activity.
First you may recall that the FCC was about to enact content protection rules for over-the-air (OTA) digital television last summer, but in late spring, a federal appeals court vacated these rules. The court claimed that the FCC had no jurisdiction beyond the RF domain, and that the rules about to go into effect strayed well into the consumer’s home electronics environment, far downstream of the tuner. The court ruled that the FCC would need explicit authority from Congress to extend its purview into this area, and thus legally enact the rules it had developed.
This decision threw about three years of industry work on a compromise solution – generally referred to as the Broadcast Flag – into disarray, just as it was finally about to come to fruition. It’s therefore no surprise that the television content and broadcast industry has been working hard ever since to get congressional authority for the FCC to extend its domain accordingly, and thereby restore the Broadcast Flag to OTA digital television rules.
As this quest of the TV industry proceeded, it garnered the attention of the music recording industry, which attached itself to the process in an attempt to have whatever jurisdiction Congress granted to the FCC in this area to include the digital radio environment, as well.
It soon became apparent, however, that a digital radio equivalent of the Broadcast Flag was not a simple replica of the TV version, because its industry vetting and standardization process – which had taken place over the preceding years, and without the involvement of the record industry – would require an equivalent procedure among radio and record businesses. Therefore any congressional authorization of the FCC would have to distinguish between the simple blessing of an otherwise completed process for DTV, vs. a yet-to-be-started course of action for digital radio.
After some discussion, the latter was given a new name, the Audio Flag. This implied that it would take a similar course to the DTV approach, but would necessarily require its own, separate development process.
How a Flag system works
Although this process could require years to complete, even this simple understanding was a step forward in the eyes of most observers because it meant that digital radio might also take a “flag” approach, as opposed to other alternatives for protecting broadcast content.
In contrast to traditional content protection schemes (such as those used by cable and satellite TV) – in which the content is encrypted before transmission, and only authorized receivers can decrypt the content – a “flag” scheme simply marks content as requiring protection when it is broadcast, and expects compliant receiving equipment to apply a protection regime to all such flagged content after demodulation. Thus the content is broadcast “in the clear,” but receivers are compelled by rule to enforce protection after reception, and all consumer equipment that connects to such receivers is also expected to observe these rules.
For DTV, the FCC authorized about a dozen different commercially available content protection systems for use in the enforcement of these rules on consumer equipment, which were intended to prohibit the “indiscriminate, mass redistribution” of content received via DTV via the Internet. Importantly, this was the only goal of the DTV flag – it was not intended to curtail any other recording, local copying or in-house redistribution of such content by the consumer, which are generally considered to fall under “fair use” rules.
(These rules make it legal for individuals to make a photocopy of a few pages of a book, or quote from it in a report, without obtaining permission of the copyright holder. They also are the basis of why the VCR was declared legal in the celebrated “Betamax” case of 1984.)
Facing the music
The record industry, represented by its U.S. trade association, the RIAA, at first proposed the traditional route (noted above) toward content protection for digital radio, the so-called “encrypt at the source” approach.
Given that this idea was only introduced in 2005, however, and that IBOC product without such encryption capability was already in use by broadcasters and consumers, encryption at the source was a non-starter for U.S. digital radio, since it would have orphaned equipment that had only recently been purchased by broadcasters and consumers.
Moreover, the entire IBOC rollout would have to be stopped while a standard encryption system was developed, vetted and approved, which could have required a year or more hiatus – effectively killing the nascent HD Radio market momentum.
So it’s no surprise that when RIAA first shopped around the encrypt-at-the-source idea, it was strongly rebuffed by Ibiquity Digital, NAB and CEA. Thus RIAA realized it was already too late to try this approach, so it moved to the only other real option, what is now being called the Audio Flag.
This move has since received a modicum of acceptance from the NAB, which has pledged to work with the RIAA toward a mutually acceptable solution. (The NAB has formed an Audio Broadcast Flag Task Force, chaired by Dan Halyburton, senior vice president and general manager of operations at Susquehanna Radio.) On the other hand, the Consumer Electronics Association – representing members that make radio receivers and who are generally opposed to the Audio Flag – doesn’t relish the idea that NAB and RIAA might bilaterally decide how the CE industry will make those receivers. But CEA will likely participate in these talks to try to achieve some broader industry consensus.
In fact, one of the bills introduced in Congress to authorize the FCC’s Broadcast Flag rules (the “Digital Content Protection Act of 2006”) has additional language addressing the Audio Flag, in which a process for such a multilateral private industry consensus – including the software and IT industries – might be reached. Meanwhile, NAB, RIAA and CEA – and perhaps others – will likely meet independently, in the hopes that a private consensus can be reached without having to undertake government mandated talks. (The bill as currently written authorizes the FCC to act upon an Audio Flag even if consensus is not reached by a particular date, the so-called “shot clock” rule.)
At present the Audio Flag is only a concept, based on the premise of the DTV Broadcast Flag, but it has no technical design, no place in the NRSC-5-A standard, and no agreement on how it would be enforced. On the latter point, an important distinction involves the RIAA’s stated preference that the Audio Flag might enforce stricter controls than the Broadcast Flag, covering not just Internet redistribution but also private copying and home networking.
Next time we’ll consider how the Audio Flag might actually work, and what deeper problems the record industry might really be attempting to solve with such a proposal.
