To our surprise, Rep. Tauzin has written a letter of his own to Chairman Powell, suggesting that Powell implement a broadcast flag mandate using powers granted to the FCC under 47 USC 336 (and other existing statutes). Tauzin does suggest that the FCC ought to consider the views of "consumer groups".

The letter is co-signed by Rep. John Dingell.

We have obtained a copy of the letter sent by Sen. Hollings to Chairman Powell.

Hollings urges Powell to move quickly and to implement a broadcast flag mandate now, even without additional legislation. He suggests that 47 USC 336(b)(4) and (b)(5) already give Powell the authority to impose such regulations.

Hollings says that it is "beyond dispute that the public interest would be served" by this mandate. We're confident that Chairman Powell is already aware that there's plenty of dispute.

What accounts for the timing of this letter? It's likely the result of Rep. Tauzin's round-table meeting last Monday, where, sources relate, Tauzin indicated that broadcast flag legislation would not be passed this year. Clearly broadcast flag proponents have reacted to this news by trying to make an end-run around legislation.

Below is the June update to the MPAA's Content Protection Status Report, filed with the Senate Judiciary Committee on June 26. (The original Status Report was published a few months ago.) Among other things, the update contains a suggestion that the DVD CCA "consensus watermark" could be used as an analog-hole-plugging watermark. (Several journalists have previously asked me whether there is any connection between these two watermark-development proposals. The answer had previously been "it's possible, but there is no connection which has been announced in public".)

The DVD CCA consensus watermark is supposed to be embedded in movies published on DVD so that DVD CCA-licensed equipment can continue to control the use of these movies even if a user decrypts them (e.g., using DeCSS). The DVD CCA license agreements contemplate that manufacturers could, in the future, be required by license to detect watermarks and act on them in some way. However, the DVD CCA has no power to control the activities of people who are not licensees and have no connection with it (except, perhaps, by suing them). It is possible to imagine a future in which detection of the DVD CCA watermark is mandated by law for all devices which perform analog to digital conversion. In fact, MPAA has already imagined such a future for us.

The full text of the update is included below.

EFF was advised that Sen. Ernest Hollings has written a letter to the FCC advocating immediate implementation of a broadcast flag mandate -- even without additional legislation. Hollings apparently claimed that the FCC already has, under existing statutes, the authority necessary to require that all manufacturers comply with BPDG rules.

We hope to have the text of the letter available soon.

Sen. Hollings is also the author of the "Consumer Broadband and Digital Television Promotion Act" (CBDTPA) -- often ridiculed as "Consume, But Don't Try Programming Anything". (EFF takes Disney and other entertainment companies to task for their support of such legislation.)

Declan McCullagh, now at CNET, reports that RIAA today suggested a broadcast flag mandate for digital audio (similar to the MPAA's proposal for digital video).

EFF's Robin Gross attended the meeting at which RIAA revealed this proposal, so we'll try to have a more detailed report in the near future.

Note that the BPDG broadcast flag is only applicable to ATSC and can't be used for any other purpose. However, creating new broadcast flag standards is easy enough. Requiring manufacturers to cripple their equipment, and programmers their software, is the difficult part.

An Internet.com article by Roy Mark reports on a highly-critical letter sent by the Consumer Federation of America to members of Congress.

On all counts, the efforts of the industry-dominated BPDG are off target. The BPDG seems to have started from the premise that all consumers are thieves and has set out to develop a hardwired anti-theft system that destroys consumers' abilities to make fair use of the programming that comes into their homes. [...]

In the longer term, the BPDG licensing approach will stifle innovation. It puts a handful of companies in charge of approving recording and display devises. Gatekeepers such as these inevitably protect their private corporate interests at the expense of the public interest.

We also understand that Public Knowledge, the Center for Democracy and Technology, and Consumers Union were represented at the roundtable meeting this morning, and had critical comments for the BPDG report.

Rep. Tauzin's round-table group is reconvening Monday, July 15, for further discussions. We'll provide more details when we have them.

The latest issue of Home Theater magazine reports on the state of major network broadcasting of popular programming in digital high-definition. In the "You Oughtta Know..." column by Chris Lewis, Home Theater reports on current network offerings. Lewis points to an on-line list of such programming, which includes

• The ABC Big Picture Show (720p)
• According to Jim (720p)
• The Agency (1080i)
• Alias (720p)
• CSI (1080i)
• Crossing Jordan (1080i)
• The District (1080i)
• The Drew Carey Show (720p)
• Everybody Loves Raymond
• Family Law (1080i)
• The Guardian (1080i)
• JAG (1080i)
• Judging Amy (1080i)
• The King of Queens (1080i)
• NYPD Blue (720p)
• The Practice (720p)
• The Tonight Show with Jay Leno (1080i)
• Touched by an Angel (1080i)
• The Wonderful World of Disney (720p)
• My Wife and Kids (720p)

and many others -- all without a broadcast flag mandate.

The MPAA published a FAQ on the broadcast flag. Our detailed comments below.