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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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« Today in History - July 2 | Main | Trust Me? »

July 02, 2005

Lack of Broadcast Flag Hurts Emergency Alert System?

Posted by Ernest Miller

That's what a column in Communications Engineering & Design Magazine claims (Fallout from the Broadcast Flag Decision).

Some folks are rejoicing that the Court overturned the FCC’s Broadcast Flag rules. But it seriously constrains the usefulness of the flexible digital broadcasting technology now rolling out in this country. The FCC has a lot of authority over cable set-top boxes, but very little authority over TV receivers. Consequently, improvements to the broadcast Emergency Alert System (EAS) that take advantage of the capabilities of digital broadcasting cannot be implemented.
The argument is that without the authority to mandate how television receivers are built then the FCC doesn't have the power to enforce an advanced emergency alert systems in digital broadcast. Well, maybe they don't, but does this mean that the EAS "cannot" be implemented? Where does the "cannot" come from? Why can't there be voluntary agreement to implement?
The FCC has a proceeding underway to modernize the EAS. The Association of Public Television Stations proposed a data broadcasting approach like the cable industry adopted to deliver Emergency Alert messages to the public. The NAB supported a Common Alerting Protocol to be carried within digital TV bitstreams. Good idea! But too bad. Digital TV sets don’t have to decode those messages. And the FCC has no authority to require digital TVs to comply. That’s the fallout from the Court’s decision.
Okay, so the FCC doesn't have this authority. Therefore, it would have been better for the FCC to simply assume an arbitrary authority for making this and any other number of mandates with regard to everything that might have to deal with a television signal at some point in the future? Um, yeah, right.

First, it is entirely unclear that this is a necessary government intervention. Sounds like something that the market can agree on and it makes a great selling point. "You want to buy this new digital receiver; it will get you better information in emergencies! Don't go with that cheap one that doesn't have this feature." Who is opposing adding this capability to their systems and why are they opposing it? Is there really a problem here? If so, what is it?

Second, if enforcing this standard requires government intervention, why wouldn't this be easily resolved by Congress? They have time for an anti-flag-desecration amendment, but they don't have time to pass a law to ensure our televisions have the best emergency alert system capabilities? Who is going to vote against that? And why would it be better for the FCC to have an arbitrary grant of authority for all sorts of things, and not simply a specific grant of authority for emergency alert systems?

Third, what the heck does the Broadcast Flag have to do with emergency alert systems anyway? Seriously, this is the biggest stretch in an argument on behalf of the Broadcast Flag I've seen. It shouldn't surprise anyone to note that the author of this piece is a supporter of the Broadcast Flag.

The FCC adopted the Broadcast Flag rules because broadcasters said there was a need to control the redistribution of broadcast programming over the Internet. This wasn’t about copy protection, because TV programs can legally be copied to your heart’s content. It was about controlling where a program (or portion of a program) can be viewed. It was about viewing a New York City news program in Miami. Or adding part of a TV soap opera to your blog. Or adding short clips of Univision’s Spanish language TV programming to a distance-learning course in the Spanish language.
And the author thinks this is a good thing. Heaven forbid you take advantage of your First Amendment rights to add a part of a TV soap opera to your blog for purposes of commentary and critique.

When the Broadcast Flag returns, and you know it will, expect this "the emergency alert system needs it" argument to rear its head. Watch for proposed grants of authority to the FCC to "fix" this emergency alert systems "problem" that, by coincidence of course, also grants the FCC authority to mandate the Broadcast Flag.

via Mark's Monday Memo

Comments (2) + TrackBacks (0) | Category: Broadcast Flag


1. joe on July 2, 2005 11:18 AM writes...

I agree with all of your observations.

But my question is why have an emergency alert system at all? How has it performed in any recent crisis? In DC when the plane's invade the airspace, are they using the alert system? Where's any example of an effective use of the system?

I lived in New York through 9/11 and its aftermath. Not once was I helped, informed, or even aware of the emergency alert system. The police would "lock down" whole sections of the city. (Staten Island!) How were they helped by the Emergency Alert System?

In this instance, the commercial media, the Internet and the telecommunications infrastructure (e.g. cell phones, maybe they should send us all emergency text messages?) seem to do an excellent job. An emergency alert system is an antiquated notion that's an ineffective waste of money.

And if what they're really talking about is Amber Alerts to help police capture fugitives, let's say that.

Permalink to Comment

2. Ernest Miller on July 2, 2005 11:36 AM writes...

Good points. I agree that we need better means for emergency alert systems overall. I do think that the broadcast emergency alert system is best suited to natural disasters, not terrorism.

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