STATEMENT OF

COMMISSIONER MICHAEL J. COPPS

APPROVING IN PART, DISSENTING IN PART

*Re:* *Digital Broadcast Content Protection*

Striking a balance between consumers' expectations that they will be
able to turn new technologies to their advantage and content producers'
expectations that they will be able to protect the products of their
creative genius is a real and growing challenge as we enter the digital
age. There is broad agreement about the need to protect content in this
new age if we are going to enjoy the full fruits of artistic creativity.
But there is the equally compelling need to guarantee that consumers are
able to enjoy the expanded opportunities that accompany the development
of liberating new technologies. Our world changes, old boundaries are
blurred and then shattered, and new rules have to be developed that
preserve traditional rights even as they accommodate new realities.

Even though today's decision does not, cannot and should not settle
these huge questions of public policy that must ultimately be decided in
venues other than the FCC, the larger backdrop should be kept in mind as
a reminder that we are at least approaching matters of great long-term
significance to the American people. An important goal of today's
Commission action is to expedite the nation's long-delayed transition to
digital television, but in a way that preserves a workable balance as we
await longer-term guidance from Congress and the Executive Branch. We
attempt to achieve this goal today by resolving a long deadlock over
technologies designed to provide digital broadcast content protection.
Commission action here strikes me as warranted because we are fast
approaching a situation wherein new technologies will provide arguably
too much power to those who would infringe and pirate the rights of
digital creativity. Such digital chaos benefits neither the creators nor
the consumers of what is sure to be dramatic new content.

Given digital media's susceptibility to indiscriminate mass online
distribution, content producers may have significantly greater
incentives to broadcast high-value content if there are in place at
least basic protection technologies. If denied such protection in one
medium (*e.g.*, free, over-the-air broadcast television), they will
migrate their new content to other media (*e.g.*, subscription cable
television). Such a result would likely discourage new digital content
in the broadcast medium and also retard the statutorily-mandated
transition to digital television. Neither outcome is acceptable.

But I am also guided by the need to protect consumers in our quest to
encourage digital content and to expedite the digital transition. The
reason we are promoting digital television, after all, is to benefit
consumers, not companies. Granting a small set of companies the power to
control all digital video content through a government-mandated
technology in order to promote digital television is neither necessary
nor wise. A broadcast flag mandate that lacked adequate protections and
limits would be reprehensible public policy.

We have worked to avoid this danger with today's Order. Our decision is
not ideal. No one will walk away with everything on their wish list.
What we have instead is an honest attempt at a workable compromise that
responds to the concerns raised by multiple commenters. We afford at
least some level of content protection. We preserve a balance between
the rights of consumers and the rights of creative content producers.
And we resolve one challenge attending the digital television transition
even as we await further guidance on the larger policy framework from
Congress and the Executive Branch.

This Order is substantially different from the proposal originally
submitted to the Commission. And I appreciate the constructive dialogue
among my colleagues that has allowed us to reach this decision. The item
we adopt today is better balanced, more sensitive to the concerns raised
by consumer groups, and supportive of multiple technologies and open
processes for product certification. The creators of copyrighted works
are provided tools and processes with which to protect their
intellectual property in the digital age. Consumers should reap the
benefits of significantly more digital content on their television
receivers. Tens of millions of American households depend upon
free-over-the-air broadcast for their television reception and a central
purpose of this decision is to ensure that they do not become
second-class consumers of second-class content.

This item has been improved so that competition between protection
technologies will hopefully preserve, for the most part, consumers'
reasonable expectations. Consumers have a right to expect that
technological advances will afford them expanded opportunities
generally, and that the freedom and vitality of digital technology will
open up new options for the ways in which they can receive and utilize
new products and services. I discuss below those places wherein I
believe we fail to protect consumer interests.

I am pleased that this Order encourages openness and competition in the
digital broadcast flag system. If only one protection technology was to
be available to consumers in the future, or if one technology was
granted a first-mover advantage allowing it to entrench itself so firmly
that new and better technologies are given no chance, we would have an
intolerable result. Consumers would be forced to use a technology not
because it provides consumer options or preserves fair use, but because
they have no choice. Corporate interests would have trumped consumer
interests. Reasonable uses of content by viewers could \-- probably
would \-- be restricted, costs would rise and technology innovation
would be hindered. I believe that today's item, although not perfect,
creates an opportunity wherein consumers will have a choice of
user-friendly digital content protection systems and wherein the reality
of competition will encourage content providers and equipment
manufacturers to develop technologies that allow reasonable consumer
uses of programming such as copying, recording, and sending digital
content securely over the Internet. A technology that blocks reasonable
personal use of digital content will not be chosen by consumers. Nor
will a technology that hampers innovation be accepted by the
manufacturers of consumer electronics products.

So the fact that today's Order now allows multiple firms to have many
different technologies that meet our rules was critical to our decision.
We reject the notion that one industry segment should have gatekeeper
control over digital content protection. Instead, we seek to establish a
streamlined, open approval process with a neutral arbiter based on
objective criteria. We seek multiple interoperable technologies that
will promote competition and consumer choice. We seek to preserve
reasonable and flexible consumer expectations and uses. And we seek to
avoid stranding legacy equipment that must be replaced to receive
protected content.

Words written in a Commission Order will not alone guarantee success. We
must remain vigilant during the interim procedures established today and
work expeditiously to develop a longer term process that includes clear
technical criteria with a transparent road to approval. That is one of
the principal purposes of the Further Notice that we approve today. As
we move forward, we must also be careful not to chill development of
software solutions generally, particularly for beneficial purposes such
as software defined radio.

The competition that we build into the system and the changes from the
original proposal allow me to support much of this Order. But I must
dissent in part because I believe that we fail to protect consumer
interests in important parts of the decision.

I dissent in part, first, because the Commission does not preclude the
use of the flag for news or for content that is already in the public
domain. This means that even broadcasts of government meetings could be
locked behind the flag. Broadcasters are given the right to use the
public's airwaves in return for serving their communities. The widest
possible dissemination of news and information serves the best interests
of the community. We should therefore be promoting the widest possible
dissemination of news and information consistent, of course, with the
copyright laws. And neither the FCC nor the broadcast flag should
interfere with the free flow of non-copyrightable material. As discussed
above, this Order attempts to strike a balance between preserving
consumers' reasonable and flexible uses and permitting content providers
a technological means to protect their copyright. But on the scale of
the public interest, we must accord great weight to enabling lawful
consumer and educational use of content when we are talking about
something that goes to the core of America's public discourse and its
civic dialogue. I understand the arguments of those who caution that
precluding the flag for news and information could entail some difficult
and sensitive decisions about what constitutes news and public
information and what does not. Even if we are confronted with some
difficult decisions, I would rather attempt the difficult than deny the
free flow of news and information the widest possible dissemination.

Second, I dissent in part because the criteria we adopt for accepting
digital content protection technologies fail to address some critical
issues. For example, we do not expressly consider the impact of a
technology on personal privacy. Improper use of the technologies could
arguably allow such things as tracking personal information. The
broadcast flag should be about protecting digital content, not about
tracking Americans' viewing habits. Protecting personal privacy is too
important to leave to chance. We should state explicitly that we will
consider this issue in the approval process and what action we would
take if some approved technologies collect information about users and
their viewing habits. I believe the Commission will be forced to address
this anon; it would have been far preferable to do so here.

As a final matter, I note that I vote for today's Order with the
understanding that it will not affect the rights or remedies available
under our nation's copyright laws and cognizant that it is Congress that
ultimately sets national policy in this critical and sensitive area.

Again, my thanks to the Bureau for working through an immensely complex
and controversial proceeding and to my colleagues for their spirit of
dialogue and cooperation that permitted us to achieve a satisfactory
outcome today. We still have much to do in working through the
implementation of today's Order and developing answers to the many
"going forward" questions raised in the further notice. I urge all
interested parties -- and they are, as we know, many -- to participate
fully as we attempt to develop policies and procedures for moving ahead
in an area wherein about the only certain thing is change.