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HRRC to FCC: "Don't Strangle Digital Audio Radio"
HRRC Advises FCC -- No Legal or Factual Basis for Copy Control
| Washington, District of Columbia | 6/16/2004 |
The Home Recording Rights Coalition (HRRC) advised the Federal Communications Commission (FCC) today that it sees "no basis whatsoever for the Commission to impair, impede, or impose any technical or legal restraint on," digital audio broadcasting (DAB).
In answering the Commission's "Notice of Inquiry" about whether the FCC has jurisdiction to take any action to restrain private home recording of digital audio broadcasts, HRRC said that the Recording Industry Association of America (RIAA) was asking the Commission "to perform a trifecta: to substitute its own judgment for that of the statutes, the sitting Congress, and the private sector."
HRRC noted that the Congress has specifically exempted free DAB broadcasts from any obligation to record companies; that no permission from a record company is necessary when music is played over the airwaves, and that the Congress had repeatedly rejected proposals for any such permission to be required. HRRC observed:
In seeking some sort of administrative regime over the home recording of free, digital terrestrial broadcasts, the RIAA seeks to build, in mid-air, a structure for which the Commission cannot possibly find or provide any foundation. *** What RIAA and its allies are tilting at in this proceeding...is the longstanding decision of the Congress not to invest producers of sound recordings with any of the licensing discretion over public performances, or any claim to control over subsequent use of such a broadcast, with which the Congress chose to invest other types of works.
HRRC said there is also nothing in either the Copyright Law or the Communications Act giving the FCC authority to regulate digital audio receivers or recorders. To the extent the Congress has addressed digital audio recording, it did so through the Audio Home Recording Act of 1992 (AHRA), in which the Congress delegated duties to other Federal agencies, but not to the FCC. Moreover, the AHRA contains a specific exemption from copyright liability for digital audio recording devices.
In treading on the turf of the AHRA, HRRC said, "the FCC would be barging into a thicket in which it lacks the power to do any clearing, cutting, or planting."
HRRC demonstrated that there is no aspect of the DAB service that should be considered threatening to RIAA and its members unless one also considers FM radio a threat, and that any copy control regulation of DAB would also have to apply to AM and FM services, or else the effect of the Commission action would be to discourage, rather than to promote DAB. In reality, HRRC said, there is no evidence whatsoever that DAB poses a threat to record companies.
HRRC observed that, despite the fact that the FCC had begun to ask for comment on digital radio in 1990, and began this DAB proceeding in 1999, the RIAA had never made a single filing in this proceeding until after this Notice of Inquiry had been announced. In fact, until shortly before the announcement of the Notice of Inquiry, no music industry entity had ever made a single filing - legal, technical, or otherwise - in this massive docket. HRRC said that this fact underscored the lack of FCC jurisdiction, the lack of any legal or technical basis for FCC action, and the lack of any RIAA plan. HRRC observed:
These deficiencies will not be cured by RIAA finally cobbling together a quasi-legislative proposal. They illustrate a deeper problem - lack of any basis or rationale for FCC involvement.
HRRC concluded: "From top to bottom, the questions on which the Commission has invited discussion involve matters of substance over which the FCC has been given no authority by the Congress. "Even if the subjects raised in this NOI could be addressed by the Commission, there is no evidence of actual harm to the RIAA or its members, nor is there any clear or firm basis for extrapolating a projection of future harm, nor is there any legal basis for the Commission to deprive consumers of their rights and legitimate expectations. "
About HRRC
About HRRC
The Home Recording Rights Coalition, founded in 1981, is a leading advocacy group for consumers' rights to use home electronics products for private, non-commercial purposes. The members of HRRC include consumers, retailers, manufacturers and professional servicers of consumer electronics products. Further information on this and related issues can be found on the HRRC website, www.hrrc.org.