By Jeffrey Krauss,
Legislative Lunatic and President of Telecommunications and Technology Policy
Congressmen Tauzin and Dingell, unhappy with the slow transition to digital broadcast television, have circulated a draft of legislation that is intended to speed things up by squeezing the relevant industries. All the interested parties–broadcast, cable and consumer electronics–share some of the pain, although cable seems to come out with less pain than the others. But the draft is badly flawed. This is just the first step in negotiations that will play out over the next year, after the Congressional elections in November. This column covers just two of the controversial topics in the draft.

The most important provision is the stealth provision entitled "Ensure the Availability of Analog Television Spectrum for Future Uses." This provision doesn't add any new language to the Communications Act–all it does is to delete subparagraph (B) of Section 309(j)(14). That's pretty mysterious, if you don't happen to have a copy so that you can see what is to be deleted. In fact, Section 309(j)(14) is the section that requires the FCC to auction the recaptured analog television spectrum. Subparagraph (A) says that analog TV stations must discontinue their broadcasts by December 31, 2006. Subparagraph (B) says that the FCC can defer this date in any market where less than 85 percent of households have access to digital broadcasts (either directly with digital TV receivers, set-top boxes that convert digital signals for display on analog TVs, or by subscribing to digital cable or satellite). So this is a really important part of the new draft–it would force all analog TV stations off the air, regardless of the market penetration of digital TV receivers and multichannel service providers.

Politically, this provision will have a difficult time. It would make analog TV receivers obsolete, starting in 2007. Unless connected to a converter box or a non-broadcast signal source like cable or satellite or a DVD player, they simply won't work anymore. So people will stop buying them as soon as the law is enacted, or maybe sooner. Another provision in the draft bill requires a warning label on analog TV sets, warning the prospective purchaser that they will not display digital TV programs. The CE manufacturers and retailers will be seriously impacted. And the existing cellular phone service operators will probably be unhappy, because a glut of land mobile spectrum could result after the broadcasters vacate the analog channels. This section of the bill won't survive as is. In the negotiations that take place next year, it might very well evaporate. But maybe the date will be pushed back a year or two.

In another provision, the draft bill would require consumer electronics equipment to comply with the "broadcast flag." This is a data element contained in the broadcast signal that indicates whether or not a program may be retransmitted over the Internet. Broadcasters and program producers are thinking about Napster, and what the effect of video program file sharing would be on their businesses. If a program carries the flag, then consumer electronics devices would not retransmit the program over the Internet.

But the language in the draft bill is off the mark. It requires "all digital devices that are capable of demodulating an incoming modulated digital terrestrial broadcast television signal, or the transmission of such signal by a multichannel video programming distributor" to recognize and comply with the broadcast flag. Trouble is, it's the output device that needs to recognize and comply, not the input device. The input device should be prohibited from stripping or changing the broadcast flag, but it's the output device that should be required to comply with the flag. The draft language is evidently based on the idea of a single set-top box with a built-in cable modem and personal video recorder, not a personal computer.

So let's look at my PC. I bought the computer, and then later bought an analog video capture card that includes a tuner. And I rent a cable modem. I can capture and store TV programs on my hard drive, and then using traditional Internet software, I can distribute those programs if I want. To meet the intent of the bill, it's the software and the cable modem that need to recognize and comply with the broadcast flag, while the video capture card need only pass it through.

Anyway, if this provision is enacted, in a revised form that does what was actually intended, then I expect that the DOCSIS cable modem standards will have to change. Cable modems and DSL modems would have to monitor the files that are transmitted, determine whether they are MPEG-encoded TV programs, and then look for the broadcast flag. And software that uses File Transfer Protocol (FTP) might also have to be changed, although that will be difficult to enforce because most of these programs are shareware or freeware.

Another part of this section would prohibit the manufacture of equipment that has analog outputs after July 1, 2005. Bye-bye VCRs and DVD players, although that's probably not what they meant.

Other provisions of the draft bill cover must-carry, cable equipment compatibility and digital tuners in TV receivers, and they are all equally controversial. It's too early to predict what will happen, but not too early to start thinking about it.

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