FCC ATTACHES AUDIO BROADCAST FLAG TO IBOC INQUIRY

In the inquiry, the FCC will further investigate concerns initially raised by the RIAA, which claimed music transmitted over IBOC digital radio is unprotected from piracy. The CEA and the Home Recording Rights Coalition (HRRC), had disagreed with RIAA and said a full-fledged rulemaking would be premature (CD April 13 p1).

“We just thought in this case it was probably worthy of providing sort of a formal docket in which people could file commented information on that issue,” said FCC Media Bureau Chief Kenneth Ferree. Whether the FCC has jurisdiction authority on imposing a so-called audio “broadcast flag” is part of the discussion, but Ferree declined to offer his own opinion on that.

Consumer group Public Knowledge, which opposed a broadcast flag for digital radio, said it was pleased with the Commission’s decision to forego a rulemaking on IBOC content protection. It predicted that after a fair and balanced examination of the facts the Commission is likely to conclude there’s no need to act further on the issue. “There are no technological issues or spectrum-related issues that require FCC action in the digital-radio arena,” said Mike Godwin, Public Knowledge’s senior technology counsel, in a statement.

Meanwhile, RIAA Exec. Vp-Gen. Counsel Steven Marks told us his group first approached the FCC last summer with concerns that music transmissions over IBOC radio would be unprotected. Marks said he couldn’t answer why RIAA’s communication with the Commission wasn’t documented in an ex parte filing at the FCC, saying he wasn’t well-versed enough on Commission rules. He referred that question to RIAA’s outside attorney, Theodore Frank of Arnold & Porter. Frank wasn’t available for comment.

RIAA Pres. Cary Sherman, in a letter to CEA Pres. Gary Shapiro seeking a dialog with the CE industry on content protection for IBOC radio, said a multi-industry process hadn’t taken place “because CEA and other parties have made clear their desire not to participate absent FCC action.” Sherman was responding to points raised by CEA and the HRRC that FCC action on IBOC protections would be “premature” because multi-industry talks hadn’t taken place as they had on the DTV broadcast flag before the Commission acted in that proceeding.

The RIAA “would very much like to engage” in talks with the CE industry and “jointly propose rules to the FCC for adoption,” Sherman said: “Because of the anomaly that copyright owners do not have rights with regard to the public performance of sound recordings by radio broadcasters, record companies and artists cannot compel you to participate -- unlike the DTV situation where content owners could demand protection of their content before licensing their programming for digital broadcast.”

Contrary to the argument by CEA and the HRRC that the FCC shouldn’t even consider the issue of IBOC protection until harm comes to the recording industry, Sherman shot back: “The threat to the recording industry of unlimited distribution and automated copying of recordings chosen by listeners is obvious and should be addressed now.” To do otherwise would “illogically require us to wait idly by until the moment of impact instead of preventing that injury now,” Sherman said. He said iBiquity has told RIAA that device makers themselves were seeking “guidance on the parameters of functionality relevant to our concerns. Wouldn’t it be better to avoid the legacy device issues that complicated other content protection efforts and provide certainty to the marketplace sooner rather than later?” Shapiro couldn’t be reached for comment.

Also to be considered in the IBOC inquiry are international coordination and where there has to be adjustments to treaties. The FCC will investigate what is the next appropriate action. Ferree said the audio digital transition is different from DTV because there’s no reclamation of spectrum. “This is market driven. There is no reclamation issue here,” he said.

The IBOC rulemaking seeks comment on several issues, including: (1) Technical rules for allowing AM night-time IBOC service, plus interference issues. (2) What types of digital services the FCC should allow, including whether IBOC must provide high-definition audio or if multicasting is allowed. The FCC also asks about subscription services. (3) Whether the FCC’s public interest, programming and operational rules apply to IBOC. (4) The impact IBOC will have on noncommercial and educational stations. (5) What the FCC should do to encourage broadcasters to transition to all- digital radio.

When asked whether it was possible for NPR to use IBOC to multicast, Ferree cautioned reporters not to jump to too many conclusions: “We ask questions about what kind of services should be permissible using IBOC. One of them, of course, is this multicasting idea and there are others as well. We are asking questions and I'm just not prepared at this point to tell you any idea of what directions this will take.”

NPR had urged the FCC to authorize a supplementary channel for HD Radio, which involves subdividing data streams into multiple streams for broadcasting audio. National Public Radio stations have been enthusiastic about digital radio and having multiple formats to offer on different channels. “Through NPR’s leadership, the technology offers the possibility of transmitting more than one programming stream through supplemental audio channels,” Comr. Adelstein said.

Moving forward to promote the introduction of digital radio, the Commission said, won’t only enhance radio quality but will advance the public interest. “These new services and capabilities will provide more opportunities to promote localism and diversity on our nation’s airwaves and will give broadcasters a greater ability to compete with emerging satellite and Internet radio service,” Chmn. Powell said.

But Comr. Copps warned that many questions remain to be settled, such as how digital radio can enhance political discourse, the larger public interest obligations and how digital radio and multicasting will affect the local competitive landscape. “What does it mean for competition if a company that would be permitted to own 8 radio stations in a market also obtains the ability to multicast many more programming streams?” he asked. “We need to be looking at such things before we leap.”