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Senator to FCC: Don't even think about a broadcast flag

Senator John Sununu (R-NH) has just announced that his office is working on legislation that would prevent the FCC from creating specific technology mandates that have to be followed by consumer electronics manufacturers.  What's his target?

Ars Technica Nate Anderson

Context & Ripple Effects

Senator John Sununu's announcement puts Congress directly in the path of the FCC's standards ambitions: his office is drafting legislation that would bar the commission from imposing mandatory technologies on consumer electronics makers, with the rumored target being a broadcast flag requirement the FCC is reportedly weighing. Per the reporting, the flag mandate itself is unconfirmed — what is confirmed is the Senator's intent to pre-empt any such ruling legislatively.

It lands on a commission already running an expansive agenda under Chairman Kevin Martin, who told industry in late 2005 that taxing a wider swath of Internet phone users would be a top priority, and whose agency was also rumored to favor à la carte channel pricing over cable bundles. A regulator comfortable reaching into devices, VoIP billing, and channel packaging is exactly the profile Sununu's bill is drawn against.

First-order effects

  • Consumer electronics manufacturers are the immediate beneficiaries: a legislated prohibition removes the compliance cost and design constraint of any FCC-mandated flag receiver before a formal rulemaking can impose one.
  • Broadcasters and content owners lose their most direct regulatory route to mandated copy protection in every digital TV device, leaving them without the commission as an enforcement lever.

Second-order effects

  • Content interests would be pushed toward voluntary device-level protection deals negotiated directly with manufacturers, shifting copy-control economics from a uniform federal mandate to private licensing terms set deal by deal.
  • A successful statute would force the FCC to test how far its other interventionist items — VoIP fees, à la carte rules — can travel before hitting the same congressional wall.

Third-order effects

  • If the pattern holds, technology-standard fights migrate from commission dockets to Capitol Hill, making explicit congressional authorization a prerequisite for regulator-imposed device requirements — a structural curb on the FCC's mandate-making power that outlasts any single flag proposal.

The trend: Congress is asserting itself as the check on FCC technology mandates, moving standards battles from the commission's dockets to legislative pre-emption.