Michael Powell's Invisible Legacy

If the FCC chairman loved markets, he had a funny way of showing it

Poor Michael Powell.

During his four years as chairman of the Federal Communications Commission, Powell strove mightily to carve out a reputation as Captain Deregulation, a would-be poster boy for letting loose the hounds of private enterprise, championing innovative new technologies, and enabling a digital revolution destined to sweep away entire industries stuck in the analog swamp.

But Powell's legacy is a bit more muddled. Following his announcement Friday that was quitting the FCC, most press coverage centered on two things: his crusade against broadcast indecency and his push to relax rules against media ownership. As the FCC steps up its effort to serve as the bluenose police, the silliness of big government as national nanny is now becoming apparent. Last week Fox Network President Gail Berman explained why the network pixilated a baby's butt on a rerun of the animated cartoon Family Guy to avoid a possible FCC fine (even though there were no viewer complaints when the show first aired five years ago): "We have to be checking and second-guessing ourselves now."

Censorship doesn't slip easily into our national cocktail. After we stop snickering—or perhaps after the threat to free expression becomes more readily apparent—we'll soon boot the Puritans out of power, and normalcy will return to the land in the form of naked cartoon baby butts, if not naked Desperate Housewives. There's no going back to Leave It to Beaver land, despite the fantasies of the right, and the FCC's lust to become the modern-day equivalent of the Hayes Commission will be seen as the colossal folly it is.

Media consolidation may turn out to be a big deal, but is it really tombstone-epitaph material? I doubt it. Instead, look to the FCC's telecommunications policy as Powell's most notable long-term accomplishment. His hands-off approach to broadband telephony will help send some of the telecom giants into the tar pits as Skype and VoIP upstarts run circles around the dinosaurs.

In telecom policy, Powell lived up to his deregulation rhetoric. But there's another legacy Powell is bequeathing us, one that has been scarcely mentioned in the press: the FCC as Federal Computer Commission.

On July 1, 2005, new FCC-mandated regulations will kick in that will make it illegal to sell or distribute any device that can receive certain digital TV streams unless it includes government-approved copy protection. Not just in digital TV sets, but embedded into personal computers, laptops, handhelds—any gizmo with a digital TV tuner card.

In this handout to Hollywood and the entertainment giants, the FCC approved a "broadcast flag" that seeks to prevent the indiscriminate redistribution of copyrighted digital TV programs on the Internet. But it will do no such thing. We already know the pirates of Darknet will continue to capture digital television shows and release them into the underground. Instead, the public will bear the brunt of the costs of the FCC's intervention.

Chris Murray, legislative counsel for Consumers Union, points out that more than 75 million DVD players in viewers' homes today will not be able to play flagged programs recorded with DVD machines sold after mid-2005. A show you record in your living room may not play in the den.

The abandonment of the plug-and-play tradition—the idea that newer technologies should be backward-compatible—is only one of the broadcast flag's flaws. The larger problem is that Powell and the FCC are treating us as consumers rather than users. The federal agency has essentially endorsed Hollywood's line that digital televisions, personal video recorders, DVD recorders, and computers are no more than playback devices for Big Entertainment content rather than intelligent machines that can store, alter, remix and share digital bits.

In spring 2004, the political group TrueMajority mashed up video of NBC's The Apprentice with news footage of President George W. Bush. In the resulting video, Trump fires Bush. Such political speech is protected under fair use, but if the broadcast flag were set, commentators would never get the raw materials to create their parodies. Similarly, the American Library Association worries the broadcast flag will prevent the use of TV clips in the classroom and prevent digitally recorded TV shows from being streamed to students in long-distance learning classes.

Today, a high school student can compile a multimedia report on the prevalence of violence on prime-time TV, complete with short examples from network telecasts. An office worker can e-mail a TV clip from her workplace to her home. Viewers can burn a TV show to a standard DVD that works in any player; they can watch TV recorded on a PC using any software; they can play TV on any device that supports MPEG-2; they can transfer the show over any kind of network; and they can record TV shows with any video capture card.

"All of these possibilities go away with the broadcast flag for digital television," says Seth Schoen, staff technologist for the Electronic Frontier Foundation.

"The FCC is now regulating the equipment, which is something they've never done before," adds tech lobbyist James M. Burger. "What's troubling is that you're ceding control of the devices in people's homes to the movie studios."

The FCC isn't stopping there. Last year the agency announced it would consider fashioning a similar muzzle for digital radio. The "audio broadcast flag," pushed hard by the Recording Industry Association of America, would be included in the digital radio transmissions of terrestrial AM and FM stations. It would likely prevent users from sending copyrighted radio programs over the Internet. But it could also hamstring legitimate uses by preventing a digital radio program from leaving the device on which it was recorded.

If the broadcast flag for video and audio worked, that would be one thing. But it's obvious even before the rule takes effect that the flag will do nothing to stop Internet piracy. A simple digital-to-analog conversion will defeat the flag. But the flag will clamp down on fair use rights, stifle innovation, turn hobbyists and tinkerers into criminals, create inconvenience, raise prices, impose new regulatory burdens—and infuriate law-abiding citizens who no longer control the technology in their own homes.

Is it any wonder that Powell is skipping town a few months before the public begins howling?

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