The Communications, Consumer’s Choice, and Broadband Deployment Act of 2006, which has been best known as one of the battlegrounds for network neutrality, is coming up for a vote today in the US Senate Committee on Commerce, Science & Transportation. In addition to granting the phone companies a so-called nationwide franchise to offer TV programming over their networks and a handful of other revisions to the law, an amendment that revives the video and audio broadcast flag has returned in all of its glory (see TITLE IV–VIDEO CONTENT, Subtitle C–Video and Audio Flag).
Under the amendment to S.2686, the Federal Communications Commission would be given the authority to reinstate the broadcast flag. Its previous attempts to create a flag for television were smacked down by the courts, which ruled that the FCC was exceeding its authority in attempting to do so. The ruling left open the possibility for Congress to explicitly give the FCC that power, which this legislation does.
The amendment in question covers both digital TV and radio, and would allow for the kind of draconian regulation the content creation industry has championed all along. It does make a few, very narrow provisions under which content could be reused, but in sum, would be bad news for consumers and consumer electronics manufacturers.
There are a couple of bones thrown to proponents of Fair Use. One is a new Digital Audio Review Board, which would be composed of representatives from the consumer electronics, "information technology," software, radio broadcasting, satellite radio broadcasting, cable, audio recording, and music publishing industries, along with public interest organizations. This Board would be responsible for submitting proposed broadcast flag regulations that represent the consensus of the Board. In the (likely) event that the Board cannot come to a consensus, the FCC would have the ability to issue whatever regulations it pleases.
Network neutrality and broadband access
Network neutrality makes a brief cameo appearance towards the end of the bill. An amendment would require the FCC to monitor developments in that area for the next five years and submit annual reports to the Senate Committee on Commerce, Science & Transportation and House Committee on Energy and Commerce. The wording fits with committee chairman Sen. Ted Stevens’ (R-AK) view that it’s too early to act on the issue of network neutrality.
Beyond the broadcast flag and network neutrality, the legislation would also establish a new "Broadband for Unserved Areas Account" in the Universal Service Fund (USF). Currently, the USF is used to subsidize the costs of providing phone service for some consumers and institutions. The bill would extend its reach to broadband, with an eye towards making high-speed Internet access available in areas it currently is not. Satellite DSL providers would be eligible for support from the USF.
After the broadcast flag was originally proposed in 2003 by the FCC, the battleground moved to the courts. Once a Federal appeals court squashed the flag, the TV and radio industries quickly shifted their attentions to Capitol Hill. Thankfully, some senators remain skeptical of the need for legislation, including Sen. John Sununu (R-NH), who believes that the government should not be involved in what is essentially a private sector matter.
Currently, this legislation is up for discussion at 2:00EDT by the Senate Commerce Committee. The Electronic Frontier Foundation has a helpful list of committee members along with their phone numbers. If you are represented by one of them, pick up the phone and give him or her a call and let your senator know how you feel about the broadcast flag. If anything, the events of the last few months have proven that broadcast TV can thrive if it gives consumers what they want. The broadcast flag is restrictive, would strike a further blow to our Fair Use rights, and is completely unnecessary. Hopefully the Senate will realize that.