FCC Adopts Digital "Broadcast Flag"
On Nov. 4, 2003, the FCC adopted rules mandating that a wide array of digital devices recognize and honor a “broadcast flag” marking over-the-air digital broadcast television against unauthorized redistribution, particularly over the Internet. Although widely reported as a tool to help prevent the “Napsterization” of high-value digital content broadcast by digital television stations, the tool has a wide-ranging effect on television receivers, cable television networks, personal computer components and other digital equipment.
The general approach of the rules is to accept the growing embedded legacy base of digital equipment, but to mandate, by July 1, 2005, some redistribution controls before trends in compression, storage, and broadband speed make file sharing of large video files as easy as sharing music files over peer-to-peer networks. The Commission’s rules require equipment manufactured after the effective date to recognize the flag at the point of demodulation of unencrypted broadcast signals, and to limit the downstream uses after demodulation. This avoids the costs of encrypting over-the-air broadcasting at the source—for example, the cost of replacing receivers or adding decoders to them. This summary will review the rules from the perspective of a cable system, which is how most television viewers receive their broadcast signals.
Insertion of the Flag
The rules allow broadcast stations to include within the digital broadcast signal a specific set of digital instructions (the “rc_descriptor” bit defined in ATSC Standard A/65B), set to restrict distribution. The flag may be inserted in any free, unencrypted over-the-air broadcast signal, not explicitly limited to the primary video signal. This does not per se restrict copying: the signal remains unencrypted over-the-air and may be captured and recorded by legacy (i.e., pre-existing) recorders. The intended purpose of the flag is to signal whether or not Internet redistribution is permitted.
Cable headends necessarily demodulate 8-VSB digital over-the-air broadcast signals and remodulate them using the QAM standard employed over cable systems. The rules provide a professional equipment exemption: cable operators and other multichannel video program distributors (“MVPDs”) who file a “written commitment” with the FCC that they are engaged in lawful operations as an MVPD are not required to meet the specific rules applicable to consumer products. If the cable operator carries the signal unencrypted, they are required to pass through the rc_descriptor in two specific locations (both the Event Information Table (“EIT”) and the Program Map Table (“PMT”)) of the retransmitted signal. If they carry the signal encrypted (as DBS does today), they must securely convey the intent of the flag, for example, by using the conditional access system of the network. Current FCC rules require that the basic cable tier be carried in the clear (i.e., without encryption). The FCC has opened a further notice to decide whether cable operators should be permitted to encrypt digital signals carried on the basic tier.
If a device is designed to demodulate 8-VSB, 16-VSB, 64-QAM or 256-QAM signals and to produce a data stream for the purpose of digital television reception, and is not covered by one of the exemptions, it is a “Covered Demodulator Product” and must meet specified compliance and robustness rules. For example, a Covered Demodulator Product would include a digital cable set-top box. The Covered Demodulator Product may output digital television signals only in compliance with the rules.
A Covered Demodulator Product may or may not screen for the flag, but in either case it may output the broadcast channels only to:
- Analog outputs (leaving the solution for the analog hole to another process).
- 8-VSB, 16-VSB, 64-QAM or 256-QAM modulated output with the flag intact in
the EIT and PMT.
- Outputs approved in accordance with interim FCC procedures, under which proponents of outputs and security technologies receive approval from the FCC after a public comment process.
- Products (such as displays) under the sole control of the covered product.
- Secure recording devices, using security techniques approved in accordance with FCC procedures.
- If the covered product is incorporated into a PC, it may output through unprotected DVI outputs with reduced resolution (typically, for display on a computer monitor).
- Incidental storage for display of a transitory image is also permitted.
The rules provide specific protection for the development of home networks. A covered product (for example, a set-top box or gateway device) may demodulate a broadcast channel without inspecting for the flag, and may then output a stream of the “unscreened content” within the home using any robust method. A robust method is defined as one which cannot easily be defeated by an ordinary user using generally available tools. This standard perhaps reflects the FCC’s desire to build “curb high” security in a world where the protected unencrypted broadcast television signal is available over-the-air and is being delivered to a large embedded base of legacy products with no obligation to respect the flag. Although the FCC’s wording is not perfectly clear, we believe its intention is to permit transport of broadcast signals that are demodulated, isolated from the rest of the transport stream, and carried within a home domain with the broadcast flag intact. This will preserve the ability of home networks to route a broadcast signal within the home using existing home network capabilities, rather than being burdened with the carriage of the entire transport stream. The set-top or gateway may also feed downstream devices that have declared themselves with the FCC as “Peripheral TSP [transport stream processor] Products” that are designed to take their feed from separate demodulators and give effect to the flag.
Cable operators may not assert greater redistribution control protection than the broadcaster has selected. In other words, if a broadcast program is not marked with a flag, the cable operator may not encode it so as to restrict its redistribution.
Distribution Outside the Home and Other Signals in the Flag
As originally discussed in the Broadcast Flag Discussion Group (“BPDG”), the rc_descriptor was intended for signaling whether or not redistribution over the Internet is permitted. The rc_descriptor, however, has a larger payload than is necessary for that purpose. This provoked concerns that the flag could become a vehicle for imposing additional obligations or for creating commercial relations inconsistent with the privileged “must carry” status afforded to free over-the-air broadcasters.
The Commission regulations partially resolve this concern. The rules themselves prohibit television broadcasters from transmitting any optional additional redistribution control information that can otherwise be fit into the bytes defined in ATSC Standard A/65B. The FCC’s order states that the purpose of the flag is to prevent “indiscriminate” redistribution of digital broadcast content over the Internet. However, the FCC will entertain petitions to use the rc_descriptor for other purposes, and has opened a further rulemaking to determine how the rc_descriptor might be used to authorize use of the Internet for secure distribution of marked broadcasting within a “personal” domain (for example, one extending to a summer home).
These rules apply to demodulators manufactured or imported after July 1, 2005. Legacy products will continue to operate thereafter, but recordings made on new compliant products will not play back on legacy equipment.
Although this decision follows the “plug and play” order, this is an FCC “first” in many ways. This is essentially a technology mandate by the federal government, although the mandate is achievable through any number of differing hardware and software security regimes that the FCC will approve. As originally proposed by MPAA, all outputs and security (including home networking connections), would need to pass through a “Table A” process largely controlled by major motion picture studios. The FCC rejected that approach and established itself as the interim authority. It plans to open a filing window, to subject proponents of specific connectors and security to public comments, and then to publish the approved technologies after evaluating their security, robustness, and licensing terms (which it expects to be fair, reasonable and nondiscriminatory). By its Further Notice, the Commission plans to explore other vehicles for approval, suggesting that there may be a way to harmonize the approval mechanism for “plug and play” with this one.
The Further Notice will also explore whether cable operators may encrypt digital basic broadcast tiers; whether the flag may be used to permit distribution within a “personal digital network environment” outside of the home; and the criteria and process for revocation of authorized connectors. Comments in the further rulemaking proceeding are due by Jan. 14, 2004, with reply comments due Feb. 13, 2004.
In the meantime, the FCC’s authority will likely be challenged. Unlike the recent “plug and play” proceeding, the FCC has no specific statutory authority for this decision. In the same way that it originally took control of cable television as “ancillary” to its authority over broadcasting, it is claiming “ancillary” authority over TV and other equipment manufacturers as incidental to its authority over radio and related equipment—which it now reads to include receivers as well as transmitters. The Commission disclaims any intention to affect copyright in general, but this decision does have complicated interplays with copyright. For example, copyright law provides a “fair use” defense to certain uses; but the FCC declined to adopt exceptions that would have carved news broadcasts out of the flag, and allows any material, copyrighted or not, to be marked for protection. Likewise, the Commission established a technological measure that is protected under the Digital Millennium Copyright Act (“DMCA”), and has basically sought to harmonize the flag with the DMCA by inviting legal hacks of the flag as permitted by the Librarian of Congress in his periodic list of approved exemptions. The FCC anticipates an appeal and has provided what it hopes is enough time for the appeal to run its course before product manufacturing cycles are affected.
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