shouting loudly

There are often times when I wish I had my trusty digital voice recorder—the one that sent Senator Ted Stevens’ “series of tubes” anti-net neutrality speech into the Internet Meme Hall of Fame. Yesterday afternoon at the annual convention for the Association for Education in Journalism and Mass Communication, the most poignant such moment came during the panel featuring the two Democratic FCC Commissioners, Michael Copps and Jonathan Adelstein.

When I asked them about the broadcast flag, both Commissioners explicitly admitted that they made a mistake by trying to impose a DRM mandate on all DTV receivers. I found this amazingly gratifying, but it was really just the finishing highlight on a great panel.

Copps and Adelstein are A+ public servants. They stand up (and stick their necks out) for the public in areas including media ownership, broadband policy, and public service obligations for broadcasters. Whenever media companies have sought to change the rules for their own enrichment, Copps and Adelstein have consistently said, “Not against the public interest.”

At the panel yesterday, they both gave interesting and insightful (albeit summary) presentations and remarkably frank answers to questions covering a range of issues.

Is the public sphere worse off without the fairness doctrine? Copps: We have to find a way to reinvigorate broadcasting with some public interest obligations, including an updated version of the fairness doctrine.

What is the FCC doing to inform the public about the DTV transition? Adelstein: “We’re way behind the 8 ball on this.” (All quotations are approximate.)

Aren’t you concerned that indecency complaints are generated by a small number of dedicated activists? Copps: “I’m less concerned about the number of complaints being generated by the few than I am about the number of offenses being generated by the few.”

When do we step in to regulate the last mile bottleneck (e.g., via net neutrality), and what is the FCC doing about our nation’s lagging broadband penetration?

Copps: We’ve frittered away the opportunity to compete. According to one OECD study, our penetration is behind that of Estonia and tied with Slovenia. It’s a terrible shame we didn’t get a wholesale requirement as a condition in the 700 MHz auction, just the latest of countless lost opportunities to inject competition into the broadband marketplace.

Adelstein: we settled for half a loaf by not imposing more requirements in the 700 MHz auction. Wholesale requirements (pdf) would have been a substantial improvement.

Of course, being the copyright and DRM wonk that I am, I couldn’t let them get by without a question on the broadcast flag. I asked whether they initially supported the FCC mandate for a flag and where they stand now in light of the federal courts’ overturning of their decision.

Both Commissioners stated that they did support it, and they now regret that decision. At one level, they regret the loss of Commission authority that came with the court’s ruling.

Copps seemed particularly bothered by this erosion of authority via court precedent. He wants to promote the public interest wherever and however possible, and the ruling has effectively reduced the Commission’s regulatory toolkit. His motivation in supporting the flag was a desire to accelerate the DTV transition. (In other words, the content industry threatened to sit on the analog airwaves until they got their DRM.)

That was good, but Adelstein’s response was sumptuous. He admitted being only lukewarm about the idea in the first place. He knew that it would not make a large dent in the amount of infringement due to the analog hole and the continuing evolution of new technologies—including, I assume, those used to circumvent DRM. “The broadcast flag is like putting duct tape on a leaky boat.”

Like Copps, Adelstein also regrets the decision in light of the real loss of regulatory leeway for the Commission. His comments also imply that he now sees the wrong in the original Faustian deal of DRM-for-DTV. The whole Commission desperately wanted to get those airwaves up for auction (in part for use as a third broadband pipe); when the content industry demanded DRM on DTV receivers, the Commission delivered.

While we on the free culture side of the copyright debate knew all along that this was a bad deal for the public, it’s nice to hear two of our best public servants come around to our side.

P.S. I know I have not written much lately; humble apologies to those of our 3.5 readers who have not already deleted ShoutingLoudly from your RSS feeds. I’m working on my dissertation—a study of the politics of DRM. Proposals for a broadcast flag mandate are part of my data set. Once I have quantifiable findings, I will share some of the highlights, I promise. In the meantime, thanks for not giving up the vigil as you anxiously await our next post.