What’s “good” for video must be good for audio, right? It is – according to at least one Congressman who has introduced a bill mandating the radio equivalent of the broadcast flag.

This bill would require that all future digital radios (both terrestrial, like HD Radio, and satellite, like XM and Sirius) “include prohibitions on unauthorized copying and redistribution of transmitted content.” The FCC would be tasked with working out the details.

And leaving the FCC with “working out the details” is always a comforting thought.

As with the television broadcast flag regulations still swimming around the legislative pool, the audio version also turns control over any signal back to the content provider rather than to the person who has paid to listen to it (that would be you and me).

So what?

H.R. 4861 is chilling in at least three ways:

– If this becomes law, you would need a license from the FCC to build a radio receiver and be forced to incorporate DRM if your receiver has a record button. In other words, satisfying the Code of Federal Regulations would come before satisfying your customers.
– Notice that “unauthorized” copying and redistribution will be prohibited, rather than unlawful copying and redistribution. Translation: unless you get permission, it’s forbidden, even if it would be a fair use or perfectly legal under the AHRA [Audio Home Recording Act].
– The bill says that the restrictions “shall not be inconsistent with the customary use of broadcast content by consumers to the extent such use is consistent with the purposes of this act and other applicable law.” As we’ve discussed before, this freezes fair use based on yesterday’s “customary uses,” rather than leaving room for tomorrow’s innovators. Remember, time shifting with your VCR was not “customary” in 1976, nor was platform-shifting CDs to your iPod in 1997.

Another rather chilling effect here is that a bill like this also gives the FCC a foot in the door to also regulate the content of media that doesn’t use the public airways (satellite, cable, etc.).

But the bottom line is that once again, big media (with the help of their pet Congress) is attempting to nullify the fair use provisions of the copyright laws. It’s not unlike GM selling you a car but holding the keys so they can tell you when and where to drive it.

broadcast flag, radio, eff