Broadcast News

Broadcast flag on trial: On February 22, the United States Court of Appeals for the District of Columbia Circuit will hear oral arguments in a lawsuit brought against the Federal Communications Commission (FCC) regarding its plans to institute the broadcast flag rule. The "broadcast flag" is essentially encryption embedded in digital television signals that would not permit recording devices such as personal video recorders, iPods, cellular phones, or VCRs to record over-the-air digital transmissions without the permission of the broadcaster. The suit, sponsored by diverse organizations including the Consumer Federation of America, Consumers Union, and the American Library Association, charges that the FCC decision to require the broadcast flag "exceeds its authority."

Public Knowledge, the Washington, DC digital rights advocacy group which is bringing the suit on behalf of the petitioners, claims that the broadcast flag will "impose significant strictures and constraints on the design of consumer-electronics and computer products—limitations that will diminish interoperability between new products and old ones, and that even pose interoperability problems among new devices." Further, it charges that the flag will significantly limit the ways consumers can use broadcast content, limitations that do not exist with current broadcast standards.

Congress ups the ante: In a 389-38 vote on February 18, the US House of Representatives passed a bill that raises the amount the FCC can fine a broadcaster for indecency violations to $500,000 per incident from the current maximum of $32,500. The measure, sponsored by representatives Fred Upton (R-MI) and Ed Markey (D-MA), also provides for the revocation of a license after three violations of the indecency rules and for the fining of individuals, such as on-air entertainers, under certain circumstances.

House Commerce Committee chair Joe Barton (R-TX) declared that the increased penalties would make "broadcasters sit up and take notice. This legislation makes it safe for families to come back into the living room." The Senate is at work on its own version of the bill, although last year the two chambers could not reach an agreement on a law that would make it as far as the President's desk—even though both chambers had approved of increased fines. The White House would look favorably on legislation that would make OTA broadcasts "more suitable for family viewing."

Opponents are concerned that heavier fines and greater government involvement would stifle freedom of expression, through increasing concerns over what would ultimately be deemed "offensive." Last year, several ABC affiliates declined to air Saving Private Ryan, citing qualms about its portrayal of violent warfare and characters' use of profanity—even though the film had already been broadcast on network television.

Bernie Sanders (D-VT) called it "a dangerous bill." Jan Schakowsky (D-IL) concurred, "We would see self- and actual censorship rise to new and undesirable heights."

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