There’s a lot being written in the tech blogosphere today about a supposition from Jeff Krauss that the recent court decision asserting the FCC had no authority to impose a broadcast flag requirement on producers of HDTV equipment would actually hurt the Emergency Alert System. The credit for Mr. Krauss is “President of Telecommunications and Technology Policy.” I’m having a little bit of difficulty finding out what post, exactly he holds currently, though I did pick up this dated (1982!) biography in a quick Google search:
Dr. Jeffrey A. Krauss is Director, Regulatory Policies of M/A-COM Laboratories. He coordinates the development of M/A-COM corporate policy with respect to the Federal Communications Commission and other regulatory and standards-setting organizations. Formerly, he was Assistant Chief of the FCC Office of Plans and Policy where his primary area of concentration was the policy impact of new technology. He received the Ph.D. from Case Western Reserve University in 1969 and has participated in numerous symposia and conferences.
I’m not sure we’re talking about the same person, but if we are, he certainly sounds like somebody who might know of where he speaks on this topic. More research on his current post later, but we’ll give the man some credit for having the technical savvy to back up his opinion.
That said, I don’t really understand his reasoning, nor do I agree. From the outset I thought the proposed mandated approach to a broadcast flag sounded like something well outside of the FCC’s authority. Even Mr. Krauss’s examples of FCC mandate sare all examples of Congress granting the FCC specific authority:
The District of Columbia Federal Court of Appeals said the FCC overstepped its jurisdiction. The FCC has full jurisdiction over broadcast television signals. But it has only limited jurisdiction over TV receivers. It can regulate the receivers RF emissions to prevent them from causing radio interference, just like personal computers and any other electronic device. It can require them to tune and demodulate analog and TV broadcasts, because of authority granted in the 1962 All Channel Receiver Act. It can require them to decode and display closed captions, because of authority granted in the 1990 Television Decoder Circuitry Act. It can require them to be equipped with V-chip program blocking capability, because of authority granted in the 1996 Telecommunications Act. It can regulate whether a TV set can be labeled cable-ready because of Sections 624A and 629 of the Communications Act, the Navigation Device sections.
So what this seems to say to me is that to impose the broadcast flag mandate on equipment makers the FCC would require the authority granted by Congress for that specific task. This seems like a reasonable exercise of legislative oversight to me. If the industry wants this flag so bad they should lobby for it.
An in-depth dissection of the argument can also be found here. I had some trouble loading this page and eventually had to resort to using the Google cache of the page.
The piece is also talked about on Engadget and Techdirt. My own comment (posted to Engadget) was whether or not the EAS was primarily the responsibility of broadcasters versus equipment manufacturers. I still stand by my initial questions on Engadget, though I’ll admit Mr. Krauss’s piece gave me some additional background into the Emergency Access System and the impacts it has had on manufacturers of cable boxes and cable companies.
That being said, I still think it’s a huge stretch to say that the implications of EAS requirements for equipment extends to the FCC the authority to require broadcast flags. The former was incorporated into a mandate for the FCC to determine what constitutes cable ready equipment. Mr. Krausss expansive argument reads like the Chewbacca defense.
