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WASHINGTON -- Top members of Congress say they want the Federal Communications Commission to join the fracas over digital television piracy. Senator Ernest Hollings (D-South Carolina) and Representatives W. J. "Billy" Tauzin (R-Louisiana) and John Dingell (D-Michigan) are asking the FCC to step in and regulate technology designed to protect copyrighted content broadcast on DTV.

In a July 19 letter, Hollings, chair of the Senate Commerce Committee, calls on the FCC to step in and regulate a DTV encryption method known as a "broadcast flag." The technology prevents users from taping and illegally distributing copyrighted programs. The flag--actually a switch in the digital signal--can instruct a CD or DVD recorder not to record material that is copyrighted.

"I believe the commission has the authority...to implement such a solution for the benefit of the digital television solution and consumers across America," writes Hollings.

This is familiar ground for Hollings. In March, the senator introduced a bill that would require the development of copyright protection standards for all digital media.

Writing Laws

In his letter, Hollings also says he intends to craft new legislation regulating the transition to digital television in August. Congress has mandated that television broadcasters fully switch to digital signals by 2006, a deadline that has caused tension in the entertainment industry, which fears that pirates will hijack the signals and mass-distribute the content over the Internet.

In a separate letter, Tauzin and Dingell direct the FCC to address the broadcast flag issue and other DTV transition items. Tauzin, who heads the House Energy and Commerce Committee, announced probable plans to introduce DTV legislation in the fall.

"We want to emphasize that our legislative agenda in no way relieves the Commission of its obligation and responsibility to continue to work diligently to resolve these issues expeditiously," Tauzin and Dingell say.

Right to Regulate?

The FCC has said it doesn't have the authority to regulate the broadcast flag, says Andy Levin, Dingell's telecommunications counsel. Part of the new focus on the broadcast flag is to assure the regulatory group it does, he says.

Still, it's unclear if the group will be able to regulate. The FCC currently has a task force dedicated to this issue, but won't comment on the letters.

Former FCC Commissioner Harold Furchtgott-Roth says he thinks the FCC's jurisdiction is "a little uncertain at this point."

"I suspect it's something that if the commission tried there would almost certainly be a court challenge," says Furchtgott-Roth, now a visiting fellow at the American Enterprise Institute for Public Policy Research. Still, he notes that FCC regulation would provide a much faster solution than if Congress were to pass legislation.

The entertainment industry has supported the idea of government intervention in copy controls. Jack Valenti, president of the Motion Picture Association of America, who argued for government involvement at a forum last week, applauds the recent letters.

Fighting for Fair Use

Many groups are wary of DTV copy controls, saying it would infringe on their legal rights to reproduce their own possessions.

However, the Cato Institute, a libertarian think tank, says the issue is not whether there should be copy protections but who will control them.

"Those kinds of technology are appropriate," says Wayne Crews, director of technology studies at the institute. "We don't want to restrict those kinds of technologies, but we don't want government to mandate them."

According to the institute, the market ultimately will develop its own copy protections and standards. "You can't stop a free society from creating hardware that can play unencrypted material," Crews says.

Dingell's counsel Levin says the congressman is adamant about providing the "important but precarious" balance between fair use rights and protections for copyright owners.

"Dingell's concern is to try and remove whatever obstacles there are to the DTV transition," Levin says.

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