EC WEIGHS IN ON BROADCAST FLAG, SAYS PROCESS RAISES ‘POTENTIAL CONCERNS’

An international standards effort, done openly and properly, has “enormous potential to prevent trade barriers, increase market access for all players and foster the dissemination of technologies” to a wider audience, the EC said in its first comments on the broadcast flag. The comments were filed at the FCC Mon. in the broadcast flag proceeding (CED March 17 p2). The work of the Bcst. Protection Discussion Group (BPDG), upon which many of the FCC’s interim broadcast flag rules were based, doesn’t seem to meet the requirements of an open standards- setting body, the EC said.

Nevertheless, the EC said it agreed with the FCC that “it will be essential to guarantee the openness and transparency of the process” for choosing technologies that will “give effect to the flag.” At the same time, the process should be “sufficiently flexible as to adapt its criteria to accommodate other technologies than the flag, which may be substantially different, but equally effective,” the EC said. It cautioned that a system based on market criteria, as the MPAA and others have advocated, “might result in an unfair advantage to incumbent technology providers” or fail to provide “competitive safeguards.” It said it feared that introduction of “new products with new functionality not imagined today may be prevented or slowed down” as a result, leading to a number of “established players acting as ‘gatekeepers.'” By comparison, a process called “functional regulation,” based on the use of open functional and objective criteria to assess proposed technologies, “has been used with success” in the European Union, the EC said.

Philips, too, had been openly critical of the BPDG process leading up to the FCC’s order last fall setting interim broadcast flag rules -- and on many of the same grounds the EC cited. Philips nevertheless hailed the FCC’s broadcast flag order when it came out in Nov., and did so again in its reply comments this week. The Commission “got it right” last fall, Philips said in its reply. The FCC “established an open and transparent process for the approval of digital broadcast content protection technologies, safeguarding against undue influence by any one industry segment or a favored group of competitors,” Philips said. In the first round of comments in the proceeding, “some parties implore the Commission to abandon these pillars” of its Nov. order, “inviting the Commission to accept proposals it explicitly rejected less than four short months ago.” Like the EC, Philips criticized the MPAA for seeking a “market-based” approach to selecting content protection technologies. It also took aim at the Digital Transmission Licensing Administrator (DTLA), which supervises the 5C patent pool. It again charged the DTLA with irresponsibly suggesting that the FCC “need not concern itself with license terms and conditions.” But Philips countered that “absolutely nothing has occurred” since the FCC’s Nov. order “to justify any such retreat from the order’s core principles.”

Thomson, the only other CE maker to file replies separately from the CEA, said it did so only to comment on “the narrow issue” whether a “unified regime” should be used to approve content protection technologies for both the broadcast flag and plug-&-play proceedings. Thomson said it didn’t support a “unitary regulatory regime” governing broadcast flag and plug-&- play because the 2 proceedings “are inherently different in their origins and purposes.” However, it said it recognized various content protection technologies would be submitted both for broadcast flag and to CableLabs for approval under plug-&-play. “If the Commission approves a content protection technology under the broadcast flag regulations, there should be a presumption in favor of approval by CableLabs under the DFAST license” of plug- &-play, Thomson said.