Before the Federal Communications Commission
Washington, D.C. 20554
In the Matter of
MB Docket No. 02-230
Digital Broadcast Copy Protection
Comments of Digital Transmission Licensing Administrator, LLC
Pursuant to the Notice of Proposed Rulemaking dated August 8, 2002 ("the
NPRM"), the Digital Transmission Licensing Administrator, LLC ("DTLA," often
referred to as "5C") is pleased to submit these comments in response to the questions and
issues identified by the Commission concerning the nature, uses and implications of a
"broadcast flag" to signal protection of digital terrestrial broadcast television ("DTV")
content against certain unauthorized redistributions (including unauthorized redistribution
over the Internet). As the Commission is aware, DTLA is the licensor of the 5C Digital
Transmission Content Protection ("DTCP") technology that can be used to provide
protection against such unauthorized redistribution of digital audiovisual content,
including DTV, as well as digital audio, content. We applaud the Commission for
addressing these issues in a timely manner, and for its consideration in the NPRM of the
need to strike the appropriate balance among the interests of consumers, program
producers, broadcasters, and consumer electronic and information technology
In this connection, as explained in these Comments, Intel Corporation, Hitachi,
Ltd., Matsushita Electric Industrial Co., Ltd., Sony Corporation and Toshiba Corporation
-- the "5C Companies" -- participated actively in the formation and the substantive work
of the Broadcast Protection Discussion Group ("BPDG") referenced in the NPRM.
Following the conclusion of the BPDG effort in June 2002, the 5C Companies have
continued to engage constructively with the companies of the Motion Picture Association
of America to develop proposed requirements for an effective implementation of the
broadcast flag that balances content owners' interests with the rights and expectations of
consumers to enjoy and copy broadcast content, and the technical needs of consumer
electronics and information technology companies that manufacture products that receive
DTV content that may be marked with the broadcast flag. We are pleased to inform the
Commission that these efforts have been successful. The MPAA companies and the 5C
Companies jointly support a common proposed set of technical Requirements for the
Protection of Unencrypted Digital Terrestrial Broadcast Content Against Unauthorized
Redistribution ("Requirements"), and a summary Proposal for Table A Criteria
("Criteria") that could be used by the Commission to authorize protection technologies
that securely output and record DTV content marked with the broadcast flag. These
jointly-proposed Requirements and Criteria are submitted herewith as Attachments A and
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These Requirements recognize that a limited government mandate over particular
aspects of devices that receive DTV content may be necessary to ensure both effective
implementation of redistribution control requirements, and a balanced and level playing
field among all manufacturers and sellers of such devices. Thus, in response to the
paragraph 4 of the NPRM, these Requirements propose regulations to define the
necessary attributes of compliance, robustness and enforcement. However, any
regulation must be narrowly tailored to accomplish solely the goals of redistribution
control of DTV content, without interfering with the reasonable and customary
expectations of consumers with respect to the use, copying and enjoyment of such
content. In these respects, from the outset of our Comments, DTLA wishes to make two
observations concerning certain nomenclature used in the NPRM, in relation to the
concept and implementation of redistribution control.
First, DTLA believes it important to recognize that the concept of "redistribution
control" is wholly separate and independent from the concept of "copy protection." See,
e.g., NPRM ¶¶ 2-10. The former determines whether and under what conditions content
may not be passed electronically (via transmission or storage media) outside of a
particular network or personal space. The latter addresses whether and under what
limitations a user who receives such content may then copy it. The 5C DTCP
technology, for example, independently enables redistribution control and copy
protection through application of various encoding states. Broadcast content under the
DTCP Content Participant Agreement must be encoded either as "copy freely" or as
"EPN" (which stands for "Encryption Plus Non-Assertion [of copy protection]"; e.g., the
broadcast content is encrypted so as to control unauthorized redistribution, but such EPN
content always will be marked "copy freely," so that a consumer authorized to receive
such content may copy it without restriction). Therefore, we suggest that the
Commission clarify, in future proceedings in this Docket, that its references to
redistribution control do not imply any intention to restrict or limit consumer copying.
Second, DTLA noted the many references in the NPRM to "consumer electronics
devices," without any parallel references to information technology products. See, e.g.,
NPRM ¶¶ 6-7 and 9. These references to "consumer electronics" in the NPRM may have
been intended as a shorthand usage intended to apply to all relevant devices.
Nevertheless, information technology devices such as DTV tuner cards already are
becoming commonplace add-in features of personal computers. Therefore, the
regulations should adopt nomenclature making clear that the regulations apply
evenhandedly to all such devices, regardless of whether they are termed "consumer
electronics" or "information technology" products.
With this background, DTLA explains the interests of DTLA and the 5C
Companies, and the relation of DTCP to the DTV "broadcast flag" protection issues now
before the Commission. We then describe the essential elements of the Requirements
and Criteria proposals, created jointly in cooperation with the MPAA companies, which
we submit herewith. Finally, pursuant to the Commission's requests in the NPRM, we
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set forth our views with respect to whether the Commission would have jurisdiction to
promulgate these proposals as regulations.
Introduction: History of DTLA and DTCP, and the 5C Companies' Efforts
to Protect Broadcast Content
DTLA licenses a content protection technology known as 5C Digital
Transmission Content Protection ("DTCP") that protects against the unauthorized
interception and retransmission of audio and audiovisual content over high speed
bidirectional digital networks. DTCP was designed for use over localized network
protocols (such as IEEE 1394, USB, MOST, Bluetooth and 802.11) and so inherently
does not facilitate redistribution of protected content over the Internet. Importantly, the
agreements by which adopters may license DTCP do not permit redistribution of
protected content to unauthorized, unsecure outputs which, today, would include the
DTCP emanated from one of the earliest work efforts of the inter-industry Copy
Protection Technical Working Group ("CPTWG"). The 5C Companies responded
separately to a 1997 Call for Proposals issued by the Digital Transmission Discussion
Group ("DTDG") of the CPTWG. Following the issuance of the final report of that
group, in 1998 the companies of the 5C melded elements of their respective technologies
into a "best of breed" solution that satisfied the technical criteria created by the DTDG.
Since 1999, DTLA has licensed DTCP to more than 50 manufacturers of
components, set top boxes, consumer electronics products and information technology
products. Two major motion picture studios (Sony Pictures Entertainment and Warner
Bros.) have signed Content Participant licenses with DTLA. Pursuant to an "IP
Statement" issued by DTLA, any other content owner may encode or cause content to be
encoded with DTCP, without subjecting itself to an infringement suit under any of the
Necessary Claims owned by the DTLA and its Founders, so long as such content owner
or, acting under the instructions of the content owner, a system operator or distributor,
follows the "Encoding Rules" set forth in Sections 5.1(a), (b), (d) and (e) of the Content
Current versions of the Adopter Agreement for manufacturers,
Content Particip ant Agreement for content owners and the IP Statement may be
downloaded from the website of the DTLA,
Prominent among the conditions for use of DTCP by non-Content Participants is adherence to the
"Encoding Rules" defining the maximum level of copy protection that may be applied using DTCP by a
content owner to content delivered via particular modes of distribution. The Encoding Rules, in brief,
permit content to be encoded as follows:
Content delivered as Pay Per View, Video on Demand and Subscription on Demand may
be encoded as "Copy Freely," "EPN," Copy One Generation" or "Copy Never."
Content delivered as Pay Television and Non-Premium Subscription Television may be
encoded as "Copy Freely," "EPN" or "Copy One Generation," but may not be encoded "Copy Never."
Programming on terrestrial broadcast channels delivered via cable or satellite
(substantially simultaneously with the terrestrial broadcast) must be encoded "Copy Freely."
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digital television receivers, digital set top boxes and digital recorders marketed by major
manufacturers incorporate protected digital input and output connections using DTCP.
In brief, DTCP consists of two primary elements: authentication and encryption.
Before transmitting protected content over a digital network, DTCP identifies and
authenticates other devices along the network that implement DTCP, and transmits the
protected content along the network in encrypted form, such that only those authenticated
devices can decrypt and access it.
DTCP carries "copy control information" to be set
in accordance with the Encoding Rules established in the Content Participant Agreement
that indicates that a downstream recording device shall treat the protected content as
"copy never," "copy one generation," "copy no more" (the marking applied to the first
generation copy), or "EPN" (an unrestricted number of copies can be made, but in
encrypted or some other secure form), or "copy freely" in the clear.
DTCP is designed to function as one element in a "link protection" system,
whereby one protection system "hands off" protected content to another protection
system that will perpetuate the protections required to be applied in accordance with the
instructions of the content owner and the rules of the licensor of the protection system.
For example, content delivered to the home protected by a conditional access system may
be digitally output from a set-top box, using DTCP, to a recording device that uses a
different record protection technology, such as D-VHS or CPRM; and that recording
device, when playing back the protected content, would digitally output that protected
content to a monitor using a protection technology such as DTCP or HDCP.
DTLA participates actively in discussions with the Commission relating to
content protection, including DTV "Hoedowns" held by the DTV Task Force, and DTCP
has been cited by the Commission in various proposals and documents relating to cable
compatibility and the digital television transition.
In addition, DTLA representatives
participated in the DTV Roundtable discussions convened by Representative W.J. "Billy"
Tauzin, Chairman of the House Energy and Commerce Committee, and Representative
Fred Upton, Chairman of the Subcommittee on Telecommunications and the Internet,
More detailed technical overviews of the operation of DTCP are publicly available in the "DTCP
White Paper" and the informational version of the DTCP Specification Volume 1, both of which may be
downloaded from the DTLA website at
Because of a U.S. government encryption export license restriction initially applicable to DTCP,
past and current DTLA license agreements do not permit the application of DTCP to digital terrestrial
broadcast content. Pursuant to commitments made by DTLA to Content Participants, DTLA has lifted that
restriction and has stated that DTLA is willing to revise the Content Participant Agreement and the Adopter
Agreement so as to permit the application of EPN encoding to digital terrestrial broadcast programs, at such
time as, and in such territories in which, a legislative or regulatory mandate creates an obligation for all
devices to protect content marked with a broadcast flag.
See, e.g., Proposal for Voluntary Industry Actions to Speed the Digital Television Transition (the
"Powell Plan"), April 4, 2002; Eighth Annual Report, In the Matter of Annual Assessment of the Status of
Competition in the Market for the Delivery of Video Programming, CS Docket No. 01-129, ¶ 85
(December 27, 2001); Report and Order, In the Matter of Compatibility Between Cable Systems and
Consumer Electronics Equipment, PP Docket No. 00-67, ¶ 15 (September 14, 2000).
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relating inter alia, to the potential role of a broadcast flag in facilitating the transition to
digital broadcast television.
In addition, the 5C Companies have contributed constructively to the
development and realization of proposals to implement the broadcast flag. Negotiations
in 2001 between the DTLA and motion picture studios with respect to the licensing of
DTCP included discussions of the potential impact of widespread unauthorized Internet
redistribution of digital terrestrial broadcast television ("DTV") content, and potential
refinements to the proposal put forth by Fox to use the ATSC redistribution control
descriptor as a "broadcast flag" to signal protection against such redistribution for DTV
During the November 28, 2001, meeting of the CPTWG, representatives of the
5C Companies presented a possible solution to the CPTWG participants.
Company representatives recommended and, with overwhelming approval of the meeting
participants, initiated the formation of a Broadcast Protection Discussion Group
("BPDG") under the aegis of the CPTWG. The purpose envisioned for the BPDG was to
address the feasibility of the proposed solution or alternatives thereto, and to draft model
compliance and robustness requirements to implement such a solution in the releva nt
consumer electronics and information technology products. As noted in the June 6, 2002,
Final Report of the Co-Chairs of the BPDG ("BPDG Report"), representatives from more
than 70 motion picture, consumer electronics and information technology companies, and
several consumer groups, participated in the BPDG. Representatives of the 5C
Companies dedicated substantial effort to the BPDG, and submitted detailed proposals
and comments to the BPDG as 5C Companies and in conjunction with other multi-
Following the conclusion of the BPDG, the 5C Companies have continued to
work cooperatively with member companies of the MPAA (and others in the consumer
electronics and information technology industries) to address several technical issue s not
resolved in the BPDG process. The fruit of these continuing efforts, as well as the BPDG
work product, are described in the sections that follow.
The Output of the BPDG Inter-Industry Effort, as Updated by the 5C
Companies and MPAA Companies, Should be the Guidepost for any FCC
The work of the BPDG comprised a seven-month project by expert engineers,
along with business, legal and consumer representatives, to evaluate the broadcast flag as
a means to signal protection for DTV programming, and to create compliance and
A copy of the presentation to the CPTWG is available online at
See Final Report of the Co-Chairs of the Broadcast Protection Discussion Group, June 8, 2002,at
¶¶ 1.2, 1.5-1.6 and Tabs B, E, F, H-1, H-2 and P-09, available online at
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robustness standards for technologies to protect DTV content marked with the broadcast
flag. This effort was open to all who wished to contribute or observe. The BPDG
attracted broad multi-industry participation among motion picture, broadcast, cable,
satellite, consumer electronics and information technology companies from the United
States, Europe, and Asia. In-person meetings were supplemented by regular
teleconferences, and an email reflector that also accommodated observers from
government agencies and Congress. As described in the BPDG Report, the BPDG
participants produced a detailed and comprehensive set of Compliance and Robustness
Requirements, which resulted from thousands of hours of work by expert engineers in
disciplines of consumer electronics and information technology design and manufacture,
cable, satellite and broadcast television delivery, and motion picture production. These
draft requirements, attached as Tab C to the BPDG Report should guide any regulations
that may be promulgated by the Commission regarding the technical implementation of
the Broadcast Flag in the appropriate consumer electronic and information technology
The Requirements document submitted herewith by the 5C Companies and
separately by the MPAA companies builds upon the work of the BPDG, and suggests
appropriate resolutions for a few issues left open by the BPDG. We respectfully submit
that, in light of the effort and great expertise contributed to the evaluation and
implementation of a broadcast flag solution by the BPDG participants, as well as the
diverse interests and capabilities of the 5C Companies and MPAA companies, that the
Requirements document should be given great consideration by the Commission, and
provides an appropriate starting point for the rulemaking in this NPRM proceeding. In
addition, the 5C Companies submit herewith a summary proposal, prepared jointly with
and separately submitted by the MPAA companies, for the criteria and processes that
may be used by the Commission for approving digital technologies that can be employed
to output or record DTV content marked with the broadcast flag ("Table A" criteria
proposals), which are relevant to this proceeding and also should receive the
Commission's most serious consideration.
The Technical Framework Contemplated in the 5C-MPAA
Companies' Proposed Requirements
Demodulator Requirements for Compliance and Robustness
The presence of the broadcast flag in the EIT or PMT of a digital terrestrial
broadcast signal indicates the intention of the content owner that devices which receive
such broadcast content -- either through terrestrial reception or via cable or satellite
retransmission -- should protect such "Marked Content" against unauthorized
Policy issues concerning the regulatory structure for implementing the technology engendered
substantial debate among certain group members. Although resolution of these issues fell outside the scope
of the BPDG, concerns identified by BPDG participants are catalogued in Part 6 of the BPDG Report. It
initially had been contemplated that a "parallel group" might provide a forum to consider further these
policy issues. Given the issuance of the NPRM, DTLA believes that the Commission is providing an
appropriate forum for consideration and resolution of these and other policy issues.
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redistribution outside of the home or personal digital network environment, including
unauthorized redistribution over the Internet.
From a technical perspective, protection is
most effective when applied at the source, such as distribution of content in an encrypted
form. In this instance, however, broadcasters will not apply to DTV protection at the
transmission source, such as encryption. Therefore, the next most effective means to
protect terrestrial broadcast content would be to apply the protection obligation in the
receiving device at the point in which the content first becomes available in a readily
usable format. With respect to DTV content, the function of demodulating the signal
from the carrier provides the initial point at which protection may readily and effectively
be applied to DTV content received in the clear. Thus, in response to questions posed by
the Commission at paragraph 6 of the NPRM, DTLA believes that the point of
demodulation remains the most appropriate point to begin applying redistribution control
for DTV content, in a seamless chain of protection as described below.
For that reason, the Requirements (like the BPDG Compliance Requirements)
contemplate that regulation would focus initially and primarily upon this demodulation
function. The demodulator function, in or incorporated into a "Covered Demodulator
Product," would ensure protection over the demodulated content until the transport
stream processor screens the content for the broadcast flag. Such screening could occur
within the Covered Demodulator Product that provides the demodulation function.
Alternatively, the Requirements proposal recognizes that transport stream processing may
not occur in the same product as demodulation. The proposed Requirements therefore
define a class of "Downstream Products" that can receive demodulated DTV content, via
a "Robust Method" for securely passing such content between these products, prior to
screening for the flag. Moreover, the Requirements provide that such "Unscreened
Content" could be securely passed from the demodulator to another product using a
digital output technology authorized by the Commission.
The key operative principle underlying these proposed Requirements for
Unscreened Content is that demodulated DTV content should remain protected until the
content is screened for the broadcast flag. If it is determined that the broadcast flag is not
present, then no further protections need be applied. The compliance requirements
applicable to the handling and recording of Unscreened Content are set forth at Section
X.3 of the Requirements proposal.
If the content has been determined to be marked with the broadcast flag, then
technologies should be applied so as to implement redistribution control. Such Marked
Content should be output and recorded digitally using only protection technologies that
perpetuate the redistribution control obligations. The compliance requirements
applicable to the output and recording of Marked Content are set forth at Section X.4 of
the Requirements proposal.
In sum, protection is achieved under the proposed Requirements via an unbroken
chain of compliance obligations. These obligations begin at the demodulation function,
which ensures that content is protected until the content is screened for the Broadcast
Capitalized terms used herein are defined in Section X.1 of the proposed Requirements.
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Flag; and, where the Flag is present, are perpetuated by handing off such Marked Content
only to technologies, authorized by the Commission, that thereafter will apply
redistribution control protections.
The Requirements further prescribe "robustness" standards applicable to
demodulation products. These standards describe how such products should be
manufactured in a manner that is clearly designed so as to effectively frustrate efforts to
defeat or "hack" the required protections. These robustness standards, for hardware and
software implementations of demodulation products and Downstream Products, are set
forth in Sections X.7 through X.12. The 5C Companies believe that the proposed
Requirements for compliance and robustness create a technological environment
sufficient for the implementation of the ATSC broadcast flag, and for the total protection
system to be applied for redistribution control with respect to DTV content. See NPRM ¶
Requirements for Compliance and Robustness for Modulation Functions
The participants in the BPDG recognized that consumer modulator products could
provide a useful and inexpensive means to facilitate digital home networking of
audiovisual content. The MPAA companies, however, raised concerns that absent
regulation of such modulation products, content that previously had been marked "copy
never" or "copy one generation," such as DVD or Pay Per View content, could be
modulated using such products into a DTV broadcast format; and, if the broadcast flag
were to be inserted into the modulated stream, such content would be treated as "copy
freely" DTV content. After the conclusion of the BPDG Report, the MPAA companies
discussed with consumer electronics and information technology companies a set of
requirements to govern such consumer modulation products. The 5C companies have
worked with the MPAA companies to refine such proposals, as reflected in the
Requirements, which contemplate a regulation prohibiting such devices from being
manufactured with the capability to insert the broadcast flag into non-DTV content.
The compliance and robustness provisions applicable to such Covered Modulator
Products are set forth in sections X.14 through X.18 of the Requirements proposal.
The Narrow and Targeted Regulatory Environment Contemplated by
The 5C Companies subscribe to the philosophy that, to the maximum extent
possible, protection is best achieved through marketplace licensing initiatives. Any
legislation or regulation necessary for protection of content should be narrowly tailored to
fill gaps in the marketplace licensing regime, to ensure a level playing field with respect
to all products that acquire and handle the content to be protected, and to secure the
No inference should be drawn from the inclusion of such modulator requirements
as to the 5C companies' views regarding any obligations or architectural assumptions
beyond the specific requirements set forth in those requirements.
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balance of consumer rights and expectations in respect of the uses of such technological
protections. In the case of DTV, where content initially is distributed over the public
airwaves in an unprotected form, licensing initiatives alone will be insufficient, and some
form of narrow and targeted government mandate will be required to effectuate
redistribution control protection.
In response to the question posed by the Commission in NPRM ¶ 6, the
Requirements attached to these Comments incorporates such regulatory requirements
with respect to certain covered products, in a manner that the 5C Companies believes to
reflect the above philosophy. To summarize these proposed Requirements:
Regulations would require that Covered Demodulation Products must be
manufactured in accordance with the robustness requirements, and must operate in
accordance with the Compliance Requirements. These requirements would ensure that
all DTV content remains protected while in digital form unless it is ascertained that the
Broadcast Flag is not present.
Where Unscreened Content is handed off by a demodulation product, via a
Robust Method, to a Downstream Product, the manufacturer, importer, distributor or
reseller of such Downstream Product would be required by regulation to file with the
Commission a written commitment to follow the Compliance Requirements. By making
the written commitment, such manufacturer, importer, distributor or reseller voluntarily
agrees to become subject to the regulations applicable to Covered Demodulation
Covered Modulator Products likewise are subject to compliance and
Regulations would provide for appropriate enforcement to ensure that
Demodulation Functions and Modulation Functions, whether imported or manufactured
domestically, are incorporated into compliant products prior to sale or distribution in the
United States. The regulations would permit components to be sold to manufacturers,
assemblers and resellers for ultimate sale of compliant products to consumers. The
regulations would not apply with respect to certain professional products and uses (e.g.,
by a licensed broadcaster, or satellite or cable operator). The regulations also would not
preclude the ability to manufacture noncompliant products for internal use (such as
research or testing) and not for distribution or sale. Retailers would be subject to
enforcement only for the sale or distribution of products that have been adjudicated not to
comply with the compliance and robustness requirements, and would be required to
identify the sources of products under investigation by the Commission that are alleged
not to comply with such requirements. Limited appropriate exemptions would ensure the
right of individuals to resell products (such as at a "yard sale") that were unregulated or
that were compliant at the time they were first manufactured or sold.
Marked Content to be output or recorded in digital form should be
protected by a technology that will ensure perpetuation of redistrib ution control. The
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Requirements contemplate such output using an authorized digital output protection
technology, and such recording using and authorized digital recording protection
technology. Authorization of such digital output and recording protection technologies
should be granted by the Commission according to defined criteria and due process
procedures. The Criteria proposal submitted herewith contemplates that a technology can
be authorized and placed by the Commission on an approved list (known in the BPDG as
"Table A"), according to one of four basic criteria, briefly described below:
3 Major Studios and/or Major Television Broadcast Groups "use or
approve" the technology ("use" or "approval" are defined terms under the Criteria
10 Major Device Manufacturers (including software vendors) have
licensed the technology and 2 Major Studios use or approve the technology.
The technology is at least as effective at protecting Unscreened Content
and Marked Content against unauthorized redistribution (including unauthorized
Internet redistribution) as is any one of the technologies then listed on Table A.
The Criteria proposal elaborates key factors to be considered in making this
determination, and processes for determining whether technologies then on Table
A have been "significantly compromised" so as not to be used for such
The technology includes output and recording controls that protect against
such unauthorized redistribution of audiovisual content, and was expressly named
as being permitted to be used for the output or recording of audiovisual content
under the license applicable to a technology listed on Table A.
The criteria described in a, b and d above are intended to reflect significant
marketplace acceptance of a technology. The criterion described in c above provides, as
an alternative, an independent finding or adjudication that a proposed technology
provides technical and enforcement protections at least equivalent to those of another
technology already authorized on Table A. The Criteria document submitted herewith at
Attachment B is substantially the same as the proposal submitted to the BPDG by the 5C
Companies and companies of the MPAA and the Computer Industry Group. The 5C
Companies anticipate that, in conjunction with the MPAA companies, our Reply
Comments in this NPRM could propose such criteria in a detailed form more amenable to
adaptation as regulation.
In addition to the above four criteria, the 5C Companies do not oppose the
consideration of other appropriate criteria, including appropriate technical and licensing
criteria, by which protection technologies could be authorized by the Commission.
Importantly, DTLA believes that any regulations with respect to the Broadcast
Flag should provide a means for rapid approval of technologies already in the
marketplace. DTCP (as well as HDCP) already are used in the marketplace to protect
against unauthorized redistribution of high value digital audiovisual content. Further, the
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DTLA has already authorized adopters of DTCP to use the CPRM and D-VHS
technologies to record content received via DTCP inasmuch as they are acknowledged to
provide secure recording protection for such content. DTLA notes that the MPAA
companies have stated during the BPDG process that they believe that these four
technologies satisfy the jointly-proposed Criteria, and thus qualify for authorization on
Table A. DTLA considers it critical that these technologies, and any others that meet the
criteria, be authorized by the Commission before the remaining regulations come into
force, lest regulatory obligations be imposed by the Commission without concurrently
providing the marketplace with any means to comply with these obligations.
Thus, in response to the question posed by the Commission in NPRM ¶ 6, the 5C
Companies respectfully submit that the regulatory scheme set forth in the attached
proposed Requirements creates an enforcement mechanism to protect DTV content
against unauthorized redistribution (including unauthorized redistribution over the
Internet). This chain of enforcement obligations ensures that DTV content will be
protected both prior to screening for the flag, and once the flag has been determined to be
present in such content.
Regulations Should Exert Minimal Impact upon Consumer Right and Ability
to Use Broadcast Content for Non-Commercial and Personal Purposes.
DTLA commends the Commission for seeking comment upon the possible impact
of the broadcast flag and redistribution control upon consumers. NPRM ¶ 9. One
general point of consensus within the BPDG process was that redistribution control
should affect neither the consumer's right to enjoy broadcast content for private and
personal purposes, nor the consumer's reasonable expectations and customary practices
with respect to recording broadcast content. The BPDG participants accepted, in
particular, that content should be freely transmittable among devices throughout the home
and personal digital network, and that no copy restrictions should be imposed upon DTV
broadcast content when recorded by the consumer, such as for time-shifting. These
principles recognize the importance of maintaining consumer use and expectations with
respect to broadcast content, and consumer rights to reap the benefits of the digital
transition through digital recording, display and home networking technologies.
As noted above, the Encoding Rules established under the DTCP Content
Participant Agreement require that DTV broadcast content may be protected against
unauthorized redistribution, but must be freely copiable. This rule mirrors the encoding
rule for analog broadcast content that was adopted by Congress in the Digital Millennium
Copyright Act of 1998, codified at 17 U.S.C. § 1201(k).
DTLA believes that it would be in the public interest for this encoding rule to be
adopted by the Commission for digital television broadcast content, as an integral part of
the consumer bargain with respect to redistribution control. Commission adoption of an
"encrypted/copy freely" encoding rule for DTV content marked with the broadcast flag
balances the protection of copyright owners' copyrights with protection for reasonable
and customary consumer expectations with respect to home recording rights. An
encoding rule regulation assures consistent application of such recording rights for
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consumers, so that the benefit of the encoding rule negotiated by DTLA for DTV
broadcast content can be secured to all consumers, without exception.
The Jurisdiction of the Commission to Promulgate Broadcast Flag
The Commission in paragraph 10 of the NPRM has asked for comments on the
legal basis for its asserting jurisdiction in the area of digital broadcast television content
protection, including its authority to mandate compliance with the proposed
Requirements set out in Attachment A. By adopting the proposal set out in the NPRM,
as elaborated by the 5C Companies in this Attachment, the Commission would be
exercising its jurisdiction over devices that are in the home and that are designed to
receive over-the-air digital television signals by means of either an off-air antenna or a
multichannel video programming distributor.
With respect to the Commission's legal authority to mandate compliance with
these requirements, there is no express statutory grant that would authorize imposing
such rules on these devices, nothing comparable to the All Channel Receiver Act,
Parental Choice in Television Programming requirements
or the Television Decoder
Circuitry Act of 1990.
In the past, the Commission has been properly mindful of the
statutory limits that constrain its jurisdiction with respect to receiving devices.
Accordingly, the Commission must tread carefully in extending its jurisdiction over these
devices, particularly where the proposed regime would require adherence to a
comprehensive set of regulations relating not only to outputs and recording of digital
broadcast television signals, as required by the presence of the broadcast flag, but also to
the design and robustness of the devices.
Although an express grant of statutory jurisdiction would place the Commission's
jurisdiction on firm footing, a sound argument could be made in support of a decision by
the Commission that it has ancillary jurisdiction to require demodulators and downstream
devices to conform to a broadcast flag regime substantially similar to that explicated in
the attached proposed rules. Under its Title I authority, the Commission may "perform
any and all acts, make such rules and regulations, and issue such orders, not inconsistent
with this chapter, as may be necessary in the execution of its functions." 47 U.S.C. §
154(i). In addition, with respect to its power with respect to regulating television
47 U.S.C. §§ 303(s) and 330(a).
47 U.S.C. §§ 303(x) and 330(c).
47 U.S.C. §§ 303(u) and 330(b).
See, e.g., In re Technical Requirements to Enable Blocking of Video Programming Based on Program
Ratings, 13 F.C.C.R. 11248, 11261 (1998) (declining to impose obligations to include program blocking
circuitry, pursuant to § 303(x), on separately sold plug-in DTV tuner boards that do not meet the statutory
criteria for covered devices). Although in-home devices may be subject to Part 15 technical standards with
respect to emissions and interference, those rules would not extend so far as to authorize imposing the
comprehensive, substantive requirements envisioned by the NPRM and the attached proposed rules.
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broadcasting, the Commission can also rely on its authority to issue "such rules and
regulations and prescribe such restrictions and conditions, not inconsistent with law, as
may be necessary to carry out the provisions of this chapter . . . ." 47 U.S.C. § 303(r).
The courts have interpreted the Commission's ancillary jurisdiction expansively,
so long as the exercise of authority is "reasonably ancillary" to "the effective
performance of [its] various responsibilities for the regulation of television
does not contravene any provision of the Communications Act
an "appropriate and reasonable" exercise of authority.
At least once before, the
Commission has relied broadly on these grants of authority to impose comprehensive
regulation on customer-owned products that receive and retransmit programming within
the customer's premises.
The Commission's NPRM asserts and the 5C Companies concur that a
comprehensive content protection scheme may be needed to protect against the
unauthorized redistribution of digital broadcast television signals. Content owners have
stated that absent such protection they may be less willing to make high-value content
available to over-the-air broadcasters and, therefore, to the American public.
Broadcasters have asserted that a mandated content protection scheme (including
regulatory enforcement mechanisms) of the sort envisioned by the NPRM is required in
order to allow them to retain competitive parity with multichannel video programming
distributors, who are better able to rely on technologies to encrypt or otherwise protect
the content that they transmit. The 5C Companies recognize that in order for such a
content protection regime to work all manufacturers must be on a level playing field:
licenses for content protection technologies that are already in use (such as for DTCP)
and other marketplace mechanisms are inadequate to assure that all devices designed to
receive digital broadcast television signals will be in compliance with the rules.
Accordingly, the 5C Companies believe that the Commission could justify
asserting jurisdiction over demodulators and downstream devices based on the following:
The signals that would be protected by in-home demodulators and
downstream devices originate, in all cases, as digital broadcast television
See United States v. Midwest Video Corp., 406 U.S. 649, 662 (1972) (quoting United States v.
Southwestern Cable Co., 392 U.S. 157, 178 (1968)); United Video, Inc v. FCC, 890 F.2d 1173, 1183 (D.C.
Cir. 1989) (holding that Commission has broad powers unless the exercise is "inconsistent with law"); New
England Tel. & Tel. Co. v. FCC, 826 F.2d 1101, 1107 (D.C. Cir. 1987), cert. denied, 490 U.S. 1039 (1989)
("wide-ranging source of authority" of § 154(i)).
North American Tel. Ass'n v. FCC, 772 F.2d 1282, 1292 (7
Id. at 1108.
See In re Telecommunications Services Inside Wiring, 13 F.C.C.R. 3659, 3700-03 (1997) (holding that
Commission has statutory authority under § 154(i) where the Act does not expressly prohibit the action and
it is necessary to the "effective performance" of the Commission's functions).
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signals and the demodulators are themselves devices that receive such signals
in the United States.
The Commission's jurisdiction extends to all interstate communication by
wire which "originates and/or is received" within the United States.
Nothing in the proposed rules set out in the attachment are in any way
inconsistent with any other provision of the Communications Act.
In the Telecommunications Act of 1996, Congress once again reaffirmed the
importance of maintaining the vitality of free, local over-the-air broadcasting,
including maintaining competitive parity with other video distribution
As the NPRM suggests, in enacting section 336(b) (5) of the Communications
Act in 1996, Congress specifically conferred broad powers on the
Commission to "prescribe such other regulations as may be necessary for the
protection of the public interest, convenience, and necessity," apparently to
enhance the Commission's power, beyond its then-existing statutory authority,
in order to facilitate the conversion to digital broadcasting.
Throughout the period of transition to digital television, the Commission has
steadfastly recognized the importance of ensuring that digital broadcast
television signals are appropriately protected aga inst unauthorized
redistribution, and that the lack of such protection might well, to quote the
opening paragraph of the NPRM, be a "key impediment" to a successful
transition to digital television.
More recently, various Members of Congress have sent letters to the
Commission stating that they believe that it would not be inappropriate for the
Commission to assert its jurisdiction to protect digital broadcast television
As noted above, in the context of the BPDG the private sector has expended
enormous time and effort, to try to achieve a consensus around a
comprehensive regime for broadcast protection, with most participants
understanding that some measure of government enforcement mechanisms
would be required if the requirements are to be meaningful.
In this respect, the Commission could exercise jurisdiction with respect to in-home consumer
demodulators, notwithstanding prior Commission decisions declining to assert jurisdiction over video
display devices not intended for use as receivers of broadcast television signals. See e.g., Sanyo
Manufacturing Corp., 58 R.R.2d 719 (1985) (decision on reconsideration of Sanyo Manufacturing Corp.,
58 R.R.2d 681 (1994)) (recently distinguished in In re Review of the Commission's Rules and Policies
Affecting the Conversion to Digital Television, Second Report and Order and Second Memorandum
Opinion and Order, MM Docket No. 00-39, ¶ 31, 27 Comm. Reg. (P&F) 487 (Aug. 9, 2002)); In re Joseph
D. Peckerman, 48 F.C.C.2d 1066 (1974) (no assertion of jurisdiction over closed circuit systems that do not
use common carrier facilities or retransmit broadcasts from licensed over-the-air broadcasters).
47 U.S.C. § 152(a).
See, e.g., H.R. Rep. No. 104-204, 104
Cong., 2d Sess. 48, 55 (1996) reprinted in U.S.C.C.A.N. 10, 11,
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Manufacturers of demodulators or other products that may receive an over-
the-air digital broadcast signal do not need to enter into a license for a content
protection technology in order to enable their devices to have access to such a
signal. Accordingly, a government mandate is "appropriate and reasonable"
and may even be "necessary" to ensure that all manufacturers comply with
the regime contemplated by the attached proposed rules.
The attached proposed Requirements also contemplate, however, that certain
obligations would be imposed on consumer modulators. As noted above, the proposed
Requirements for Covered Modulation Products would ensure that such devices are not
able to insert the broadcast flag. If such devices were permitted to do so, they could act
as a channel for "laundering" content that had originated in some other distribution
channel (such as pay-per-view or DVD disk) because that content would then be treated
by downstream devices as digital broadcast content. As noted above, even though the
owners of such content had intended that it not be freely copied (and, indeed, had made it
available on the basis that it would never be copied), once the broadcast flag is inserted,
the content would then become "freely copiable," as permitted by the compliance rules
(which apply digital broadcast television content) set out in the attached proposal.
Based on the above factors, an argument could be made to support a decision by
the Commission to exercise jurisdiction over consumer modulators. That case is weaker
than it is with respect to demodulators, however, because the source of the signals being
processed by the modulator will be unknown. Not only might the content include digital
broadcast television programming, or cable or satellite programming, but it could also
include DVD content or even a consumer's own home movies. Where the Commission
would require a consumer modulator to comply with regulations applicable to the
processing of all unencrypted digital content, of which some (and maybe even much)
might not have been transmitted into the home by means of wire or radio, as suggested by
some of the decisions cited above, it arguably is on less sure jurisdictional footing.
In this respect, the 5C Companies believe that the Commission would be on safer
ground if Congress enacted express authority for the Commission to regulate consumer
modulators. Such a grant would be appropriate, but only if it is limited to the very
specific purposes set out in the NPRM and to the extent it is necessary to require
compliance with the attached proposed rules. Given that it may, therefore, be appropriate
to obtain from Congress such a grant of authority, in order to minimize the possibility of
a successful jurisdictional challenge to the entire regime, it may well be the safest course
for the Commission, at the same time, to be granted express statutory authority with
respect to consumer demodulators (and downstream devices) as well. In this regard, the
5C Companies note that in this past Congress, House Energy and Commerce Committee
Chairman Billy Tauzin prepared and sought comment from interested parties on
In this respect, in this area, unlike others where the Commission has refrained from regulating in-home
devices, regulation is needed because manufacturers may not otherwise have adequate consumer-based or
competitive incentives to comply with the rules. Cf. In re Technical Requirements to Enable Blocking of
Video Programming Based on Program Ratings, 13 F.C.C.R. 11248, 11256 (1998) (Commission declines
to regulate other aspects of TV receiver design, such as security features or the ability to display ratings on
demand, given other incentives to meet consumer needs and to differentiate products).
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initial drafts of a bill that would have expressly granted the Commission with jurisdiction
to adopt regulations of the sort attached hereto.
The 5C Companies, throughout the BPDG work effort and in cooperation with
companies of the MPAA, have endeavored to provide the Commission with constructive
multi-industry proposals to implement the broadcast flag and to protect DTV content
marked with the flag against unauthorized distribution (including unauthorized
redistribution over the Internet). The Requirements proposal submitted herewith (and
concurrently by the MPAA) reflects both the work of the BPDG, and reasonable
resolutions of technical and structural issues left open at the conclusion of the BPDG
process. Similarly, the Criteria proposal attached to these Comments (and concurrently
to the comments of the MPAA) recommend the authorization of digital output and
recording protection technologies that either have garnered significant acceptance in the
marketplace, or have demonstrated to the Commission that its technical and enforcement
capabilities are at least as effective as those of technologies already on the list.
We hope that the Commission finds these submissions to be useful in considering
the promulgation of regulations in support of protection for the broadcast flag. We look
forward to reviewing the submissions of other parties and to commenting thereupon in
our forthcoming Reply Comments.
Seth D. Greenstein
McDermott, Will & Emery
600 Thirteenth Street, NW
Washington, D.C. 20005-3096