[Federal Register Volume 68, Number 232 (Wednesday, December 3, 2003)]
[Rules and Regulations]
[Pages 67599-67607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30007]



[[Page 67599]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 76

[MB Docket No. 02-230; FCC 03-273]


Digital Broadcast Content Protection

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this item, the Commission adopts final rules implementing 
an ATSC flag-based redistribution control system to protect digital 
broadcast television content from unauthorized redistribution and 
ensure the continued flow of high value digital content to consumers 
via over-the-air broadcasting. This action is taken pursuant to the 
Commission's ancillary authority and is intended to preserve the 
viability of over-the-air broadcasting and further the digital 
television transition.

DATES: Effective January 2, 2004, except for Sec. Sec.  73.9002 and 
73.9008 which contain information collection requirements that are not 
effective until approved by the Office of Management and Budget. The 
FCC will publish a document in the Federal Register announcing the 
effective date for those sections. The incorporation by reference of 
certain publications listed in the regulations is approved by the 
Director of the Federal Register, as of January 2, 2004.

FOR FURTHER INFORMATION CONTACT: Susan Mort, [email protected], (202) 
418-1043. For additional information concerning the information 
collection(s) contained in this document, contact Leslie Smith, Federal 
Communications Commission, Room 1-A804, 445 12th Street, SW., 
Washington, DC 20554, or via the Internet at [email protected], or 
at 202-418-0217.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Report and Order and Further Notice of 
Proposed Rulemaking, FCC 03-273, adopted and released on November 4, 
2003. The full text of this document is available for inspection and 
copying during normal business hours in the FCC Reference Center, 445 
12th Street, SW., Washington, DC 20554. The complete text may be 
purchased from the Commission's copy contractor, Qualex International, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text 
may also be downloaded at: http://www.fcc.gov. Alternative formats are 
available to persons with disabilities by contacting Brian Millin at 
(202) 418-7426 or TTY (202) 418-7365 or at [email protected].

Paperwork Reduction Act

    The Report and Order portion of this document contains either a new 
or modified information collection(s). The Commission, as part of its 
continuing effort to reduce paperwork burdens, invites the general 
public and the Office of Management and Budget (OMB) to comment on the 
information collections contained in this Second Report and Order, as 
required by the Paperwork Reduction Act of 1995, Public Law 104-13. 
Public and agency comments are due February 2, 2004.
    In addition to filing comments with the Secretary, a copy of any 
PRA comments on the information collections contained herein should be 
submitted to Leslie Smith, Federal Communications Commission, Room 1-
A804, 445 12th Street, SW., Washington, DC 20554, or via the Internet 
to [email protected], and to Kim A. Johnson, OMB Desk Officer, Room 
10236 NEOB, 725 17th Street, NW., Washington, DC 20503, or via the 
Internet to [email protected].

Summary of the Report and Order

    1. In the Report and Order portion of this Report and Order and 
Further Notice of Proposed Rulemaking, the Commission adopts final 
rules implementing an ATSC flag-based redistribution control system to 
protect digital broadcast television content from unauthorized 
redistribution. Absent this action, we conclude that the threat of 
widespread unauthorized redistribution of high value digital content 
will deter content providers from making such content available through 
broadcast outlets. The creation of a redistribution control system for 
digital broadcast content is therefore necessary to preserve the future 
viability of over-the-air broadcasting.
    2. Under this system, broadcasters are not required to, but may use 
the ATSC flag for redistribution control purposes only. The final rules 
require that demodulators integrated within, or produced for use in, 
digital television reception devices, including PC and IT products, 
(``Demodulator Products'') must recognize and give effect to the ATSC 
flag pursuant to certain compliance and robustness rules. MVPDs are 
permitted to perpetuate the flag in two ways on their systems: (1) By 
MVPD pass-through of the ATSC flag where the retransmission is 
unencrypted; or (2) where the retransmission is encrypted, by conveying 
the presence of the flag by some means that requires the consumer's 
reception equipment to protect the content as if the flag were present.
    3. As an enforcement mechanism, the Report and Order adopts written 
commitment regimes whereby (1) manufacturers or importers of ATSC 
demodulators obtain from buyers of such products a written commitment 
that they will incorporate such demodulators into compliant and robust 
devices or sell or distribute to third parties that have also made such 
written commitment, and (2) manufacturers or importers of Peripheral 
TSP Products agree to abide by the Demodulator Products compliance and 
robustness rules. The Report and Order further establishes interim 
procedures by which proponents of a particular content protection or 
recording technology can certify to the Commission that such technology 
is appropriate for use in Demodulator Products.
    4. Paperwork Reduction Act: This Report and Order contains either a 
new or modified information collection(s). The Commission, as part of 
its continuing effort to reduce paperwork burdens, invites the general 
public to comment on the information collection(s) contained in this 
Report and Order as required by the Paperwork Reduction Act of 1995, 
Public Law 104-13. Public and agency comments are due February 2, 2004.
    5. Final Regulatory Flexibility Analysis: As required by the 
Regulatory Flexibility Act, the Commission has prepared a Final 
Regulatory Flexibility Analysis (``FRFA'') relating to this Report and 
Order. The FRFA is set forth within.
    6. Ordering Clauses: It is ordered that pursuant to the authority 
contained in Sections 1, 2, 4(i) and (j), 303, 307, 309(j), 336, 337, 
396(k), 403, 601, 614(b) and 624a, of the Communications Act of 1934, 
47 U.S.C 151, 152, 154(i) and (j), 303, 307, 309(j), 336, 337, 396(k), 
403, 521, 534(b) and 544a, that the Commission's rules ARE HEREBY 
AMENDED as set forth herein, and shall become effective 30 days after 
publication in the Federal Register except that rule sections 73.9002 
and 73.9008 that contain information collection requirements under the 
PRA is not effective until approved by OMB. The FCC will publish a 
document in the Federal Register announcing the effective date for 
those sections. The Commission's Consumer and Governmental Affairs 
Bureau, Reference Information Center, SHALL SEND a copy of this Report 
and Order, including the Final Regulatory Flexibility Analysis, to the 
Chief

[[Page 67600]]

Counsel for Advocacy of the Small Business Administration.

Final Regulatory Flexibility Analysis

    7. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA'') an Initial Regulatory Flexibility Analysis (``IRFA'') 
was incorporated in the Further Notice of Proposed Rulemaking 
(``FNPRM''). The Commission sought written public comment on the 
proposals in the FNPRM, including comment on the IRFA. No comments were 
received on the IRFA. This present Final Regulatory Flexibility 
Analysis (``FRFA'') conforms to the RFA.
    8. Need for, and Objectives of, the Report and Order. The need for 
FCC regulation in this area derives from a forthcoming threat to over-
the-air broadcast television in so far as high quality digital 
programming may be withheld from broadcast outlets by content owners 
fearful of the content's indiscriminate redistribution. The objective 
of the final rules, as set forth in the Report and Order portion of the 
Report and Order and Further Notice of Proposed Rulemaking, is to 
facilitate the DTV transition by creating a flag-based content 
protection system which will limit the indiscriminate redistribution of 
digital broadcast content and thereby protect the continued flow of 
high value content to consumers via over-the-air broadcasting.
    9. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA. No comments were received in response to the 
IRFA.
    10. Description and Estimate of the Number of Small Entities to 
Which the Proposed Rules Will Apply. The RFA directs the Commission to 
provide a description of and, where feasible, an estimate of the number 
of small entities that will be affected by the proposed rules. The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental entity. In addition, the term ``small Business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act. A small business concern is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (``SBA'').
    11. Television Broadcasting. The Small Business Administration 
defines a television broadcasting station that has no more than $12 
million in annual receipts as a small business. Business concerns 
included in this industry are those ``primarily engaged in broadcasting 
images together with sound.'' According to Commission staff review of 
the BIA Publications, Inc. Master Access Television Analyzer Database 
as of May 16, 2003, about 814 of the 1,220 commercial television 
stations in the United States have revenues of $12 million or less. We 
note, however, that, in assessing whether a business concern qualifies 
as small under the above definition, business (control) affiliations 
must be included. Our estimate, therefore, likely overstates the number 
of small entities that might be affected by our action, because the 
revenue figure on which it is based does not include or aggregate 
revenues from affiliated companies. There are also 2,127 low power 
television stations (LPTV). Given the nature of this service, we will 
presume that all LPTV licensees qualify as small entities under the SBA 
definition.
    12. In addition, an element of the definition of ``small business'' 
is that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific television station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply do not exclude any television station from the 
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also as noted, an additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.
    13. Cable and Other Program Distribution. The SBA has developed a 
small business size standard for cable and other program distribution 
services, which includes all such companies generating $12.5 million or 
less in revenue annually. This category includes, among others, cable 
operators, direct broadcast satellite (``DBS'') services, home 
satellite dish (``HSD'') services, multipoint distribution services 
(``MDS''), multichannel multipoint distribution service (``MMDS''), 
Instructional Television Fixed Service (``ITFS''), local multipoint 
distribution service (``LMDS''), satellite master antenna television 
(``SMATV'') systems, and open video systems (``OVS''). According to the 
Census Bureau data, there are 1,311 total cable and other pay 
television service firms that operate throughout the year of which 
1,180 have less than $10 million in revenue. We address below each 
service individually to provide a more precise estimate of small 
entities.
    14. Cable Operators. The Commission has developed, with SBA's 
approval, our own definition of a small cable system operator for the 
purposes of rate regulation. Under the Commission's rules, a ``small 
cable company'' is one serving fewer than 400,000 subscribers 
nationwide. We last estimated that there were 1,439 cable operators 
that qualified as small cable companies. Since then, some of those 
companies may have grown to serve over 400,000 subscribers, and others 
may have been involved in transactions that caused them to be combined 
with other cable operators. Consequently, we estimate that there are 
fewer than 1,439 small entity cable system operators that may be 
affected by the decisions and rules adopted in this Report and Order.
    15. The Communications Act, as amended, also contains a size 
standard for a small cable system operator, which is ``a cable operator 
that, directly or through an affiliate, serves in the aggregate fewer 
than 1% of all subscribers in the United States and is not affiliated 
with any entity or entities whose gross annual revenues in the 
aggregate exceed $250,000,000.'' The Commission has determined that 
there are 68,500,000 subscribers in the United States. Therefore, an 
operator serving fewer than 685,000 subscribers shall be deemed a small 
operator if its annual revenues, when combined with the total annual 
revenues of all of its affiliates, do not exceed $250 million in the 
aggregate. Based on available data, we find that the number of cable 
operators serving 685,000 subscribers or less totals approximately 
1,450. Although it seems certain that some of these cable system 
operators are affiliated with entities whose gross annual revenues 
exceed $250,000,000, we are unable at this time to estimate with 
greater precision the number of cable system operators that would 
qualify as small cable operators under the definition in the 
Communications Act.
    16. Direct Broadcast Satellite (``DBS'') Service. Because DBS 
provides subscription services, DBS falls within the SBA-recognized 
definition of Cable and Other Program Distribution Services. This 
definition provides that a small entity is one with $12.5 million or 
less in annual receipts. There are four licensees of DBS services under 
part 100 of the Commission's rules. Three of those licensees are 
currently operational. Two of the licensees that are operational have 
annual revenues that may be in excess of the threshold for a small 
business. The Commission,

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however, does not collect annual revenue data for DBS and, therefore, 
is unable to ascertain the number of small DBS licensees that could be 
impacted by these proposed rules. DBS service requires a great 
investment of capital for operation, and we acknowledge, despite the 
absence of specific data on this point, that there are entrants in this 
field that may not yet have generated $12.5 million in annual receipts, 
and therefore may be categorized as a small business, if independently 
owned and operated.
    17. Home Satellite Dish (``HSD'') Service. Because HSD provides 
subscription services, HSD falls within the SBA-recognized definition 
of Cable and Other Program Distribution Services. This definition 
provides that a small entity is one with $12.5 million or less in 
annual receipts. The market for HSD service is difficult to quantify. 
Indeed, the service itself bears little resemblance to other MVPDs. HSD 
owners have access to more than 265 channels of programming placed on 
[chyph]C-band satellites by programmers for receipt and distribution by 
MVPDs, of which 115 channels are scrambled and approximately 150 are 
unscrambled. HSD owners can watch unscrambled channels without paying a 
subscription fee. To receive scrambled channels, however, an HSD owner 
must purchase an integrated receiver-decoder from an equipment dealer 
and pay a subscription fee to an HSD programming package. Thus, HSD 
users include: (1) Viewers who subscribe to a packaged programming 
service, which affords them access to most of the same programming 
provided to subscribers of other MVPDs; (2) viewers who receive only 
non-subscription programming; and (3) viewers who receive satellite 
programming services illegally without subscribing. Because scrambled 
packages of programming are most specifically intended for retail 
consumers, these are the services most relevant to this discussion.
    18. Multipoint Distribution Service (``MDS''), Multichannel 
Multipoint Distribution Service (``MMDS'') Instructional Television 
Fixed Service (``ITFS'') and Local Multipoint Distribution Service 
(``LMDS''). MMDS systems, often referred to as ``wireless cable,'' 
transmit video programming to subscribers using the microwave 
frequencies of the MDS and ITFS. LMDS is a fixed broadband point-to-
multipoint microwave service that provides for two-way video 
telecommunications.
    19. In connection with the 1996 MDS auction, the Commission defined 
small businesses as entities that had annual average gross revenues of 
less than $40 million in the previous three calendar years. This 
definition of a small entity in the context of MDS auctions has been 
approved by the SBA. The MDS auctions resulted in 67 successful bidders 
obtaining licensing opportunities for 493 Basic Trading Areas 
(``BTAs''). Of the 67 auction winners, 61 met the definition of a small 
business. MDS also includes licensees of stations authorized prior to 
the auction. As noted, the SBA has developed a definition of small 
entities for pay television services, which includes all such companies 
generating $12.5 million or less in annual receipts. This definition 
includes multipoint distribution services, and thus applies to MDS 
licensees and wireless cable operators that did not participate in the 
MDS auction. Information available to us indicates that there are 
approximately 850 of these licensees and operators that do not generate 
revenue in excess of $12.5 million annually. Therefore, for purposes of 
the IRFA, we find there are approximately 850 small MDS providers as 
defined by the SBA and the Commission's auction rules.
    20. The SBA definition of small entities for Cable and Other 
Program Distribution Services, which includes such companies generating 
$12.5 million in annual receipts, seems reasonably applicable to ITFS. 
There are presently 2,032 ITFS licensees. All but 100 of these licenses 
are held by educational institutions. Educational institutions are 
included in the definition of a small business. However, we do not 
collect annual revenue data for ITFS licensees, and are not able to 
ascertain how many of the 100 non-educational licensees would be 
categorized as small under the SBA definition. Thus, we tentatively 
conclude that at least 1,932 licensees are small businesses.
    21. Additionally, the auction of the 1,030 LMDS licenses began on 
February 18, 1998, and closed on March 25, 1998. The Commission defined 
``small entity'' for LMDS licenses as an entity that has average gross 
revenues of less than $40 million in the three previous calendar years. 
An additional classification for ``very small business'' was added and 
is defined as an entity that, together with its affiliates, has average 
gross revenues of not more than $15 million for the preceding calendar 
years. These regulations defining ``small entity'' in the context of 
LMDS auctions have been approved by the SBA. There were 93 winning 
bidders that qualified as small entities in the LMDS auctions. A total 
of 93 small and very small business bidders won approximately 277 A 
Block licenses and 387 B Block licenses. On March 27, 1999, the 
Commission re-auctioned 161 licenses; there were 40 winning bidders. 
Based on this information, we conclude that the number of small LMDS 
licenses will include the 93 winning bidders in the first auction and 
the 40 winning bidders in the re-auction, for a total of 133 small 
entity LMDS providers as defined by the SBA and the Commission's 
auction rules.
    22. In sum, there are approximately a total of 2,000 MDS/MMDS/LMDS 
stations currently licensed. Of the approximate total of 2,000 
stations, we estimate that there are 1,595 MDS/MMDS/LMDS providers that 
are small businesses as deemed by the SBA and the Commission's auction 
rules.
    23. Satellite Master Antenna Television (``SMATV'') Systems. The 
SBA definition of small entities for Cable and Other Program 
Distribution Services includes SMATV services and, thus, small entities 
are defined as all such companies generating $12.5 million or less in 
annual receipts. Industry sources estimate that approximately 5,200 
SMATV operators were providing service as of December 1995. Other 
estimates indicate that SMATV operators serve approximately 1.5 million 
residential subscribers as of July 2001. The best available estimates 
indicate that the largest SMATV operators serve between 15,000 and 
55,000 subscribers each. Most SMATV operators serve approximately 
3,000-4,000 customers. Because these operators are not rate regulated, 
they are not required to file financial data with the Commission. 
Furthermore, we are not aware of any privately published financial 
information regarding these operators. Based on the estimated number of 
operators and the estimated number of units served by the largest ten 
SMATVs, we believe that a substantial number of SMATV operators qualify 
as small entities
    24. Open Video Systems (``OVS''). Because OVS operators provide 
subscription services, OVS falls within the SBA-recognized definition 
of Cable and Other Program Distribution Services. This definition 
provides that a small entity is one with $12.5 million or less in 
annual receipts. The Commission has certified 25 OVS operators with 
some now providing service. Affiliates of Residential Communications 
Network, Inc. (``RCN'') received approval to operate OVS systems in New 
York City, Boston, Washington, DC and other areas. RCN has sufficient 
revenues to assure us that they do not qualify as small business 
entities. Little financial information is available for the other 
entities authorized to provide OVS

[[Page 67602]]

that are not yet operational. Given that other entities have been 
authorized to provide OVS service but have not yet begun to generate 
revenues, we conclude that at least some of the OVS operators qualify 
as small entities.
    25. Electronics Equipment Manufacturers. Rules adopted in this 
proceeding could apply to manufacturers of DTV receiving equipment and 
other types of consumer electronics equipment. The SBA has developed 
definitions of small entity for manufacturers of audio and video 
equipment as well as radio and television broadcasting and wireless 
communications equipment. These categories both include all such 
companies employing 750 or fewer employees. The Commission has not 
developed a definition of small entities applicable to manufacturers of 
electronic equipment used by consumers, as compared to industrial use 
by television licensees and related businesses. Therefore, we will 
utilize the SBA definitions applicable to manufacturers of audio and 
visual equipment and radio and television broadcasting and wireless 
communications equipment, since these are the two closest NAICS Codes 
applicable to the consumer electronics equipment manufacturing 
industry. However, these NAICS categories are broad and specific 
figures are not available as to how many of these establishments 
manufacture consumer equipment. According to the SBA's regulations, an 
audio and visual equipment manufacturer must have 750 or fewer 
employees in order to qualify as a small business concern. Census 
Bureau data indicates that there are 554 U.S. establishments that 
manufacture audio and visual equipment, and that 542 of these 
establishments have fewer than 500 employees and would be classified as 
small entities. The remaining 12 establishments have 500 or more 
employees; however, we are unable to determine how many of those have 
fewer than 750 employees and therefore, also qualify as small entities 
under the SBA definition. Under the SBA's regulations, a radio and 
television broadcasting and wireless communications equipment 
manufacturer must also have 750 or fewer employees in order to qualify 
as a small business concern. Census Bureau data indicates that there 
1,215 U.S. establishments that manufacture radio and television 
broadcasting and wireless communications equipment, and that 1,150 of 
these establishments have fewer than 500 employees and would be 
classified as small entities. The remaining 65 establishments have 500 
or more employees; however, we are unable to determine how many of 
those have fewer than 750 employees and therefore, also qualify as 
small entities under the SBA definition. We therefore conclude that 
there are no more than 542 small manufacturers of audio and visual 
electronics equipment and no more than 1,150 small manufacturers of 
radio and television broadcasting and wireless communications equipment 
for consumer/household use.
    26. Computer Manufacturers. The Commission has not developed a 
definition of small entities applicable to computer manufacturers. 
Therefore, we will utilize the SBA definition of electronic computers 
manufacturing. According to SBA regulations, a computer manufacturer 
must have 1,000 or fewer employees in order to qualify as a small 
entity. Census Bureau data indicates that there are 563 firms that 
manufacture electronic computers and of those, 544 have fewer than 
1,000 employees and qualify as small entities. The remaining 19 firms 
have 1,000 or more employees. We conclude that there are approximately 
544 small computer manufacturers.
    27. Description of Projected Reporting, Recordkeeping and other 
Compliance Requirements. On the transmission side, the final rules do 
not require the use of the ATSC flag by broadcasters, but instead 
permit the use of the flag at the broadcaster's discretion for 
redistribution control purposes.
    28. With respect to the reception side of the equation, the final 
rules require that demodulators integrated within, or produced for use 
in, DTV reception devices, including PC and IT products, (i.e., 
``Covered Demodulator Products''), must recognize and give effect to 
the ATSC flag pursuant to certain compliance and robustness rules. The 
compliance rules detail the appropriate manner in which Demodulator 
Products may output flag-marked content. As to robustness, the 
generalized ``ordinary user'' standard contained in the final rules 
should afford consumer electronics, and IT and PC manufacturers, 
flexibility in determining how to protect flag-marked content.
    29. Administratively, the final rules adopt a written commitment 
regime whereby manufacturers or importers of demodulators obtain from 
buyers a written commitment that they will incorporate such 
demodulators into compliant and robust devices, or sell or distribute 
to third parties that have also made such written commitment. The 
Report and Order also adopts a written commitment regime to ensure that 
manufacturers or importers of ``Peripheral TSP Products'' that can be 
used in connection with demodulators will abide by the Demodulator 
Product compliance and robustness rules.
    30. The Report and Order also establishes interim procedures by 
which proponents of a particular content protection or recording 
technology can certify to the Commission that such technology is 
appropriate for use in Demodulator Products. Upon review of a 
proponent's submission, the Commission will issue a public notice. If 
no objection is received within 20 days, the Commission will 
expeditiously determine whether the technology is approved for use in 
Demodulator Products. If substantive objections are received with 
respect to a particular technology, the Commission will undertake an 
expedited review of its merits. The interim procedures also provide for 
the revocation of insecure or compromised content protection and 
recording technologies.
    31. Finally, the Report and Order permits MVPDs to perpetuate the 
flag in two ways on their systems: (1) By MVPD pass-through of the ATSC 
flag where the retransmission is unencrypted; or (2) where the 
retransmission is encrypted, by conveying the presence of the flag by 
some means that requires the consumer's reception equipment to protect 
the content as if the flag were present.
    32. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered. The RFA requires an 
agency to describe any significant alternatives that it has considered 
in reaching its proposed approach, which may include the following four 
alternatives (among others): (1) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities.
    33. Because use of the ATSC flag is voluntary on the part of 
broadcasters, we do not believe that small broadcast stations will be 
significantly economically affected by the final rules. On the 
reception side, while all consumer electronics, information technology, 
and personal computer manufacturers will be required to integrate flag 
recognition capability into

[[Page 67603]]

devices designed for television reception, we do not believe that small 
manufacturers will be adversely affected since the cost of integrating 
the necessary technology is de minimis. The written commitment regime 
should likewise have no significant effect on small manufacturers or 
importers as there is little cost involved in preparing and filing a 
written commitment. As to the interim procedures for approval of new 
content protection and recording technologies, we do not believe that 
small entities seeking approval will be significantly economically 
affected by the applicable procedures. Finally, we believe that the 
flexibility afforded MVPDs in how to effectuate the flag will mitigate 
any potential significant economic impact on smaller MVPDs.
    34. Federal Rules Which Duplicate, Overlap, or Conflict with the 
Commission's Proposals. None.
    35. Report to Congress: The Commission will send a copy of the 
Report and Order and Further Notice of Proposed Rulemaking, including 
this FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the Report and Order, including this FRFA, to the Chief Counsel for 
Advocacy of the SBA. A copy of the Report and Order and FRFA (or 
summaries thereof) will also be published in the Federal Register.

List of Subjects

47 CFR Part 73

    Incorporation by reference, Television.

47 CFR Part 76

    Cable television, Television.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 73 and 76 as follows:

PART 73--RADIO BROADCAST SERVICES

0
1. The authority for part 73 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 334 and 336.

0
2. Add subpart L to part 73 to read as follows:

Subpart L--Digital Broadcast Television Redistribution Control

Sec.
73.8000 Incorporation by reference.


Sec.  73.8000  Incorporation by reference.

    (a) The materials listed in this section are incorporated by 
reference in this part. These incorporations by reference were approved 
by the Director of the Federal Register in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. These materials are incorporated as they 
exist on the date of the approval, and notice of any change in these 
materials will be published in the Federal Register. The materials are 
available for purchase at the corresponding addresses noted below, and 
all are available for inspection at the Office of the Federal Register, 
800 North Capitol Street, NW., suite 700, Washington, DC, and at the 
Federal Communications Commission, 445 12th St., SW., Reference 
Information Center, Room CY-A257, Washington, DC 20554.
    (b) The following materials are available for purchase from at 
least one of the following addresses: Global Engineering Documents, 15 
Inverness Way East, Englewood, CO 80112 or at http://www.global.ihs.com; or American National Standards Institute, 25 West 
43rd Street, 4th Floor, New York, NY 10036 or at http://www.webstore.ansi.org/ansidocstore/default.asp.
    (1) ATSC A/52: ``ATSC Standard Digital Audio Compression (AC-3),'' 
1995, IBR approved for Sec.  73.682.
    (2) ATSC Doc. A/53B, Revision B with Amendment 1: ``ATSC Digital 
Television Standard,'' August 7, 2001, IBR approved for Sec.  73.682, 
except for Section 5.1.2 (``Compression format constraints'') of Annex 
A (``Video Systems Characteristics'') and the phrase ``see Table 3'' in 
Section 5.1.1. Table 2 and Section 5.1.2 Table 4.
    (3) ATSC A/65B: ``ATSC Standard: Program and System Information 
Protocol for Terrestrial Broadcast and Cable (Revision B),'' March 18, 
2003, IBR approved for Sec. Sec.  73.9000 and Sec.  73.9001.
    (4) International Standard ISO/IEC 13818-1:2000(E); ``Information 
Technology `` Generic Coding of Moving Pictures and Associated Audio 
Information: Systems,'' 2000, IBR approved for Sec.  73.9000.

0
3. Add subpart M to part 73 to read as follows:

Subpart M--Digital Broadcast Television Redistribution Control

Sec.
73.9000 Definitions.
73.9001 Redistribution control of digital television broadcasts.
73.9002 Sale or distribution of demodulators, covered demodulator 
products, and peripheral TSP products.
73.9003 Compliance requirements for covered demodulator products: 
Unscreened content.
73.9004 Compliance requirements for covered demodulator products: 
Marked content.
73.9005 Compliance requirements for covered demodulator products: 
Audio.
73.9006 Add-in covered demodulator products.
73.9007 Robustness requirements for covered demodulator products.
73.9008 Interim approval of authorized digital output protection 
technologies and authorized recording methods.
73.9009 Manufacture for exportation.


Sec.  73.9000  Definitions.

    (a) Authorized digital output protection technology means a 
technology approved pursuant to the procedures in Sec.  73.9008.
    (b) Authorized recording method means a recording method approved 
pursuant to the procedures in Sec.  73.9008.
    (c) Bona fide reseller means a party regularly engaged, or about to 
become regularly engaged, in the lawful commercial enterprise of 
selling, reselling, manufacturing, or assembling demodulators, or 
products incorporating demodulators, in compliance with this subpart.
    (d) Broadcast flag means the redistribution control descriptor 
(rc--descriptor()) described in ATSC A/65B: `` Standard: Program and 
System Information Protocol for Terrestrial Broadcast and Cable 
(Revision B),'' (incorporated by reference, see Sec.  73.8000).
    (e) Computer product means a product that is designed for or 
permits the end user to install a wide variety of commercially 
available software applications thereon, such as a personal computer, 
handheld ``Personal Digital Assistant'' and the like, and further 
includes a subsystem of such a product, such as a graphics card.
    (f) Covered demodulator product means a product that is required 
under Sec. Sec.  73.9002(a)(1) or 73.9002(b)(1) to comply with the 
demodulator compliance requirements, and to be manufactured in 
accordance with the demodulator robustness requirements.
    (g) Demodulator means a component, or set of components, that is 
designed to perform the function of 8-VSB, 16-VSB, 64-QAM or 256-QAM 
demodulation and thereby produce a data stream for the purpose of 
digital television reception.
    (h) Demodulator compliance requirements means the requirements set 
out in Sec. Sec.  73.9003 through 73.9006.
    (i) Demodulator robustness requirements means the requirements set 
out in Sec.  73.9007.

[[Page 67604]]

    (j) Peripheral TSP product means a product that is capable of 
accessing in usable form unscreened content or marked content passed to 
such product via a robust method where the manufacturer of such product 
has committed in writing in accordance with Sec.  73.9002(c) that such 
product will comply with the demodulator compliance requirements and be 
manufactured in accordance with the demodulator robustness 
requirements.
    (k) EIT means Event information table as defined in ATSC A/65B: 
ATSC Standard: Program and System Information Protocol for Terrestrial 
Broadcast and Cable (Revision B) (incorporated by reference, see Sec.  
73.8000).
    (l) Marked content means, with respect to a Covered demodulator 
product, Unencrypted digital terrestrial broadcast content that such 
product has (1) received and demodulated and for which such product has 
inspected either the EIT or PMT and determined the broadcast flag to be 
present, or (2) where such product is a peripheral TSP product, 
received via a robust method and accessed in usable form, and for which 
such product either inspected the EIT or PMT and determined the 
broadcast flag to be present or determined through information robustly 
conveyed with such content that another covered demodulator product had 
previously so screened such content and determined the broadcast flag 
to be present; provided, however, that, with respect to a covered 
demodulator product, marked content shall not include content that has 
been passed from such product pursuant to Sec. Sec.  73.9004(a)(1), 
73.9004(a)(2), 73.9004(a)(3), 73.9004(a)(5), 73.9004(a)(6), or 
73.9006(b).
    (m) PMT means program map table as defined in International 
Standard ISO/IEC 13818-1:2000(E): ``Information Technology--Generic 
Coding of Moving Pictures and Associated Audio Information: Systems'' 
(incorporated by reference, see Sec.  73.8000).
    (n) Robust method means, with respect to the passing of unscreened 
content or marked content from one product to another, a content 
protection method that complies with Sec.  73.9007.
    (o) Transitory image means data that has been stored temporarily 
for the sole purpose of enabling a function not prohibited by this 
subpart but that (1) does not persist materially after such function 
has been performed and (2) is not stored in a way that permits copying 
or storing of such data for other purposes.
    (p) Unencrypted digital terrestrial broadcast content means 
audiovisual content contained in the signal broadcast by a digital 
television station without encrypting or otherwise making the content 
available through a technical means of conditional access, and includes 
such content when retransmitted in unencrypted digital form.
    (q) Unscreened content means, with respect to a covered demodulator 
product, unencrypted digital terrestrial broadcast content that such 
product either:
    (1) Received and demodulated and for which such product has 
inspected neither the EIT nor the PMT for the broadcast flag; or
    (2) Where such product is a peripheral TSP product, received via a 
robust method and accessed in usable form, and for which such product 
has inspected neither the EIT nor the PMT for the broadcast flag and 
has not determined through information robustly conveyed with such 
content another covered demodulator product had previously so screened 
such content and determined the broadcast flag to be present; provided, 
however, that, with respect to a covered demodulator product, 
unscreened content shall not include content that has been passed from 
such product pursuant to Sec. Sec.  73.9003(a)(1), 73.9003(a)(2), 
73.9003(a)(3), 73.9003(a)(4), 73.9003(a)(6), 73.9003(a)(7), or 
73.9006(b).
    (r) User accessible bus means a data bus that is designed for end 
user upgrades or access, such as an implementation of a smartcard 
interface, PCMCIA, Cardbus, or PCI that has standard sockets or 
otherwise readily facilitates end user access. A user accessible bus 
does not include memory buses, CPU buses, or similar portions of a 
device's internal architecture that do not permit access to content in 
a form usable by end users.


Sec.  73.9001  Redistribution control of digital television broadcasts.

    Licensees of TV broadcast stations may utilize the redistribution 
control descriptor described in ATSC A/65B: ``ATSC Standard: Program 
and System Information Protocol for Terrestrial Broadcast and Cable 
(Revision B),'' (incorporated by reference, see Sec.  73.8000) provided 
they do not transmit the optional additional redistribution control 
information.


Sec.  73.9002  Sale or distribution of demodulators, covered 
demodulator products, and peripheral TSP products.

    (a) Demodulators. No party that manufactures or imports a 
demodulator shall sell or distribute in interstate commerce such 
Demodulator unless:
    (1) At the time of such sale or distribution such demodulator is 
itself, or is incorporated into, a product that complies with the 
demodulator compliance requirements and was manufactured in accordance 
with the demodulator robustness requirements; or
    (2) Such sale or distribution is to a party that has committed in 
writing pursuant to paragraph (d) of this section not to sell or 
distribute demodulators other than in accordance with paragraphs (a)(1) 
or (a)(2) of this section.
    (b) Covered demodulator products. No party shall sell or distribute 
in interstate commerce a covered demodulator product that does not 
comply with the demodulator compliance requirements and demodulator 
robustness requirements. The requirements of this paragraph shall not 
apply to the sale or resale of a product that was manufactured prior to 
the effective date of this subpart or that initially was sold or 
distributed in compliance with this subpart.
    (c) Peripheral TSP products. No party that manufactures or imports 
a peripheral TSP product shall sell or distribute such peripheral TSP 
product in interstate commerce unless, at the time of such sale or 
distribution, such peripheral TSP product complies with the demodulator 
compliance requirements and was manufactured in accordance with the 
demodulator robustness requirements. The requirements of this paragraph 
shall not apply to the sale or resale of a product that was 
manufactured prior to the effective date of this subpart or that was 
initially was sold or distributed in compliance with this subpart.
    (d) Written commitments. (1) A written commitment to allow sale or 
distribution of demodulators under paragraph (a)(2) of this section, or 
for a peripheral TSP product, shall be submitted to the Federal 
Communications Commission, Chief, Media Bureau, Attn: Broadcast Flag 
Written Commitment, 445 12th Street, SW., Washington, DC 20554.
    (2) The information to be provided by a party filing a written 
commitment to allow sale or distribution of demodulators under 
paragraph (a)(2) of this section shall include a statement that one of 
the following conditions is true:
    (i) The party is a bona fide reseller;
    (ii) The party is a licensed digital television broadcaster; or
    (iii) The party is a multichannel video programming distributor, or 
other party engaged, or about to become engaged, in the lawful 
retransmission of unencrypted digital terrestrial broadcast

[[Page 67605]]

content pursuant to Sec.  76.1909 of this chapter.
    (3) The information to be provided by a party filing a written 
commitment for a peripheral TSP product shall include statements that 
that the party is engaged, or about to become engaged, in the lawful 
commercial enterprise of manufacturing such peripheral TSP product, and 
that such product will comply with the demodulator compliance 
requirements and be manufactured in accordance with the demodulator 
robustness requirements.
    (4) It shall be a violation of this subpart, enforceable by the 
Commission, for any person that has filed a written commitment pursuant 
to paragraph (d) of this section to:
    (i) In the case such commitment to allow sale or distribution of 
demodulators under paragraph (a)(2) of this section, sell or distribute 
the demodulator other than in accordance with paragraphs (a)(1) or 
(a)(2) of this section; or
    (ii) In the case of such commitment for a peripheral TSP product, 
sell or distribute the peripheral TSP product other than in compliance 
with paragraph (c) of this section.
    (5) Written commitments filed pursuant to paragraph (d) of this 
section will be publicly available in accordance with Sec. Sec.  0.441 
through 0.470 of this chapter.
    (e) The requirements of this section shall become applicable on 
July 1, 2005.


Sec.  73.9003  Compliance requirements for covered demodulator 
products: unscreened content.

    (a) A covered demodulator product shall not pass, or direct to be 
passed, Unscreened Content to any output except:
    (1) To an analog output;
    (2) To an 8-VSB, 16-VSB, 64-QAM or 256-QAM modulated output, 
provided that the broadcast flag is retained in the both the EIT and 
PMT;
    (3) To a digital output protected by an authorized digital output 
protection technology authorized for use with unscreened content, in 
accordance with any applicable obligations established as a part of its 
approval pursuant to Sec.  73.9008;
    (4) Where the stream containing such content has not been altered 
following demodulation and such covered demodulator product outputs, or 
directs to be output, such content to a peripheral TSP product solely 
within the home or other, similar local environment, using a robust 
method;
    (5) Where such covered demodulator product outputs, or directs to 
be output, such content to another product and such covered demodulator 
product exercises sole control (such as by using a cryptographic 
protocol), in compliance with the demodulator robustness requirements, 
over the access to such content in usable form in such other product;
    (6) Where such covered demodulator product outputs, or directs to 
be output, such content for the purpose of making a recording of such 
content pursuant to paragraph (b)(2) of this section, where such 
content is protected by the corresponding recording method; or
    (7) Where such covered demodulator product is incorporated into a 
computer product and passes, or directs to be passed, such content to 
an unprotected output operating in a mode compatible with the digital 
visual interface (DVI) rev. 1.0 Specification as an image having the 
visual equivalent of no more than 350,000 pixels per frame (e.g. an 
image with resolution of 720 x 480 pixels for a 4:3 (nonsquare pixel) 
aspect ratio), and 30 frames per second. Such an image may be attained 
by reducing resolution, such as by discarding, dithering or averaging 
pixels to obtain the specified value, and can be displayed using video 
processing techniques such as line doubling or sharpening to improve 
the perceived quality of the image.
    (b) A covered demodulator product shall not record or cause the 
recording of unscreened content in digital form unless such recording 
is made using one of the following methods:
    (1) A method that effectively and uniquely associates such 
recording with a single covered demodulator product (using a 
cryptographic protocol or other effective means) so that such recording 
cannot be accessed in usable form by another product except where the 
content of such recording is passed to another product as permitted 
under this subpart; or
    (2) An authorized recording method authorized for use with 
unscreened content in accordance with any applicable obligations 
established as a part of its approval pursuant to Sec.  73.9008 
(provided that for recordings made on removable media, only authorized 
recording methods expressly approved pursuant to Sec.  73.9008 for use 
in connection with removable media may be used).
    (c) Paragraph (b) of this section does not impose restrictions 
regarding the storage of unscreened content as a transitory image.
    (d) The requirements of this section shall become applicable on 
July 1, 2005.


Sec.  73.9004  Compliance requirements for covered demodulator 
products: marked content.

    (a) A covered demodulator product shall not pass, or direct to be 
passed, marked content to any output except:
    (1) To an analog output;
    (2) To an 8-VSB, 16-VSB, 64-QAM or 256-QAM modulated output, 
provided that the broadcast flag is retained in the both the EIT and 
PMT;
    (3) To a digital output protected by an authorized digital output 
protection technology, in accordance with any applicable obligations 
established as a part of its approval pursuant to Sec.  73.9008;
    (4) Where such covered demodulator product outputs, or directs to 
be output, such content to another product and such covered demodulator 
product exercises sole control (such as by using a cryptographic 
protocol), in compliance with the demodulator robustness requirements, 
over the access to such content in usable form in such other product;
    (5) Where such covered demodulator product outputs, or directs to 
be output, such content for the purpose of making a recording of such 
content pursuant to paragraph (b)(2) of this section, where such 
content is protected by the corresponding recording method; or
    (6) Where such covered demodulator product is incorporated into a 
computer product and passes, or directs to be passed, such content to 
an unprotected output operating in a mode compatible with the digital 
visual interface (DVI) Rev. 1.0 Specification as an image having the 
visual equivalent of no more than 350,000 pixels per frame (e.g., an 
image with resolution of 720 x 480 pixels for a 4:3 (nonsquare pixel) 
aspect ratio), and 30 frames per second. Such an image may be attained 
by reducing resolution, such as by discarding, dithering or averaging 
pixels to obtain the specified value, and can be displayed using video 
processing techniques such as line doubling or sharpening to improve 
the perceived quality of the image.
    (b) A covered demodulator product shall not record or cause the 
recording of marked content in digital form unless such recording is 
made using one of the following methods:
    (1) A method that effectively and uniquely associates such 
recording with a single covered demodulator product (using a 
cryptographic protocol or other effective means) so that such recording 
cannot be accessed in usable form by another product except where the 
content of such recording is passed to another product as permitted 
under this subpart or

[[Page 67606]]

    (2) An authorized recording method in accordance with any 
applicable obligations established as a part of its approval pursuant 
to Sec.  73.9008 (provided that for recordings made on removable media, 
only authorized recording methods expressly approved pursuant to Sec.  
73.9008 for use in connection with removable media may be used).
    (c) Paragraph (b) of this section does not impose restrictions 
regarding the storage of marked content as a transitory image.
    (d) The requirements of this section shall become applicable on 
July 1, 2005.


Sec.  73.9005  Compliance requirements for covered demodulator 
products: Audio.

    Except as otherwise provided in Sec. Sec.  73.9003(a) or 
73.9004(a), covered demodulator products shall not output the audio 
portions of unscreened content or of marked content in digital form 
except in compressed audio format (such as AC3) or in linear PCM format 
in which the transmitted information is sampled at no more than 48 kHz 
and no more than 16 bits/sample. The requirements of this section shall 
become applicable on July 1, 2005.


Sec.  73.9006  Add-in covered demodulator products.

    (a) Where a covered demodulator product passes unscreened content 
or marked content to another product, other than where such covered 
demodulator product passes, or directs such content to be passed to an 
output (e.g., where a demodulator add-in card in a personal computer 
passes such content to an associated software application installed in 
the same computer), it shall pass such content:
    (1) Using a robust method; or
    (2) Protected by an authorized digital output protection technology 
authorized for such content in accordance with any applicable 
obligations established as a part of its approval pursuant to Sec.  
73.9008. Neither unscreened content nor marked content may be so passed 
in unencrypted, compressed form via a User Accessible Bus.
    (b) The requirements of this section shall become applicable on 
July 1, 2005.


Sec.  73.9007  Robustness requirements for covered demodulator 
products.

    The content protection requirements set forth in the demodulator 
compliance requirements shall be implemented in a reasonable method so 
that they cannot be defeated or circumvented merely by an ordinary user 
using generally-available tools or equipment. The requirements of this 
section shall become applicable on July 1, 2005.

    Note to Sec.  73.9007: Generally-available tools or equipment 
means tools or equipment that are widely available at a reasonable 
price, including but not limited to, screwdrivers, jumpers, clips 
and soldering irons. Generally-available tools or equipment also 
means specialized electronic tools or software tools that are widely 
available at a reasonable price, other than devices or technologies 
that are designed and made available for the specific purpose of 
bypassing or circumventing the protection technologies used to meet 
the requirements set forth in this subpart. Such specialized 
electronic tools or software tools includes, but is not limited to, 
EEPROM readers and writers, debuggers or decompilers.

Sec.  73.9008  Interim approval of authorized digital output protection 
technologies and authorized recording methods.

    (a) Certifications for digital output protection technologies and 
authorized recording methods. The proponent of a specific digital 
output protection technology or recording method seeking approval for 
use in covered demodulator products shall certify to the Commission 
that such digital output protection technology or recording method is 
appropriate for use in covered demodulator products to give effect to 
the broadcast flag. Such certification shall include the following 
information:
    (1) A general description of how the digital output protection 
technology or recording method works, including its scope of 
redistribution;
    (2) A detailed analysis of the level of protection the digital 
output protection technology or recording method affords content;
    (3) Information regarding whether content owners, broadcasters or 
equipment manufacturers have approved or licensed the digital output 
protection technology or recording method for use; and
    (4) If the technology is to be offered publicly, a copy of its 
licensing terms, and fees, as well as evidence demonstrating that the 
technology will be licensed on a reasonable, non-discriminatory basis.
    (5) If any of the information is proprietary in nature, the 
proponent may seek confidential treatment of the proprietary portion of 
their certification pursuant to Sec.  0.459 of this chapter.
    (b) Initial certification window. Following the effective date of 
this subpart, the Commission shall issue a public notice commencing an 
initial certification window for digital output protection technologies 
or recording methods. Within thirty (30) days after the date of this 
public notice, proponents of digital output protection technologies or 
recording methods may file certifications pursuant to paragraph (a) of 
this section. Following close of the initial certification window, the 
Commission shall issue a public notice identifying the certifications 
received and commencing an opposition window. Within twenty (20) days 
after the date of this public notice, oppositions may be filed with 
respect to a certification.
    (1) If no objections are received in response to a proponent's 
certification within the twenty (20) day opposition window, the 
Commission shall expeditiously issue a determination indicating whether 
the underlying digital output protection technology or recording method 
is approved for use with covered demodulator products.
    (2) If an objection is raised within the twenty (20) day opposition 
window alleging that a proponent's certification contains insufficient 
information to evaluate the appropriateness of the underlying digital 
output protection technology or recording method for use with covered 
demodulator products, the proponent may file a reply within 10 days 
after the close of the twenty (20) day opposition window. The 
Commission shall determine whether to dismiss the certification without 
prejudice or to undertake a full review of the certification's merits 
pursuant to paragraph (d) of this section.
    (3) If an objection is raised within the twenty (20) day opposition 
window alleging that a proponent's digital output protection technology 
or recording method is inappropriate for use with covered demodulator 
products, the Commission shall undertake a full review of the 
associated certification's merits pursuant to paragraph (d) of this 
section. The proponent may file a reply within 10 days after the close 
of the twenty (20) day opposition window. In such cases, the Commission 
shall issue a determination indicating whether the underlying digital 
output protection technology or recording method is approved for use 
with covered demodulator products.
    (c) Effect of subsequent certifications. Where a proponent of a 
digital output protection technology or recording method files a 
certification pursuant to paragraph (a) of this section subsequent to 
the initial certification window described in paragraph (b) of this 
section:
    (1) If no objections are received in response to a proponent's 
certification within twenty (20) days after the date of public notice 
of the filing of such certification, the Commission shall expeditiously 
issue a determination indicating whether the underlying digital output 
protection technology or

[[Page 67607]]

recording method is approved for use with covered demodulator products.
    (2) If an objection is raised within twenty (20) days after the 
date of public notice of the filing of a proponent's certification 
alleging that such certification contains insufficient information to 
evaluate the appropriateness of the underlying digital output 
protection technology or recording method for use with covered 
demodulator products, the proponent may file a reply within 10 days 
after the close of the twenty (20) day opposition window. The 
Commission shall determine whether to dismiss the certification without 
prejudice or to undertake a full review of the certification's merits 
pursuant to paragraph (d) of this section.
    (3) If an objection is raised within twenty (20) days after the 
date of public notice of the filing of a proponent's certification 
alleging that the underlying digital output protection technology or 
recording method is inappropriate for use with covered demodulator 
products, the proponent may file a reply within 10 days after the close 
of the twenty (20) day opposition window. The Commission shall 
undertake a full review of the certification's merits pursuant to 
paragraph (d) of this section. In such cases, the Commission shall 
issue a determination indicating whether the underlying digital output 
protection technology or recording method is approved for use with 
covered demodulator products.
    (d) Commission determinations. Where the Commission undertakes a 
full review of the merits of a certification for a digital output 
protection technology or recording method, the Commission may consider, 
where applicable, the following factors:
    (1) Technological factors including but not limited to the level of 
security, scope of redistribution, authentication, upgradability, 
renewability, interoperability, and the ability of the digital output 
protection technology to revoke compromised devices;
    (2) The applicable licensing terms, including compliance and 
robustness rules, change provisions, approval procedures for downstream 
transmission and recording methods, and the relevant license fees;
    (3) The extent to which the digital output protection technology or 
recording method accommodates consumers' use and enjoyment of 
unencrypted digital terrestrial broadcast content; and
    (4) Any other relevant factors the Commission determines warrant 
consideration.
    (e) Revocation of approval. (1) If the security of a content 
protection technology or recording method approved for use in covered 
demodulator products has been compromised, a person may seek revocation 
of such approval pursuant to Sec.  76.7 of this chapter.
    (2) Petitioners seeking revocation of a content protection 
technology or recording method's approval for use in covered 
demodulator products shall articulate in detail the extent to which the 
content protection or recording technology has been compromised and 
demonstrate why alternative measures are insufficient to address the 
breach in security.


Sec.  73.9009  Manufacture for exportation.

    The requirements of this subpart do not apply to demodulators, 
covered demodulator products or peripheral TSP products manufactured in 
the United States solely for export.

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
4. The authority citation for part 76 continues to read as follows:

    Authority 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 
307, 308, 309, 312, 317, 325, 338, 339, 503, 521, 522, 531, 532, 
533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 
556, 558, 560, 571, 572, and 573.

0
5. Add new Sec.  76.1909 to read as follows:


Sec.  76.1909  Redistribution control of unencrypted digital 
terrestrial broadcast content.

    (a) For the purposes of this section, the terms unencrypted digital 
terrestrial broadcast content, EIT, PMT, broadcast flag, covered 
demodulator product, and marked content shall have the same meaning as 
set forth in Sec.  73.9000 of this chapter.
    (b) Encrypted Retransmission. Where a multichannel video 
programming distributor retransmits unencrypted digital terrestrial 
broadcast content in encrypted form, such distributor shall, upon 
demodulation of the 8-VSB, 16-VSB, 64-QAM or 256-QAM signal, inspect 
either the EIT or PMT for the broadcast flag, and if the broadcast flag 
is present:
    (1) Securely and robustly convey that information to the consumer 
product used to decrypt the distributor's signal information, and
    (2) Require that such consumer product, following such decryption, 
protect the content of such signal as if it were a covered demodulator 
product receiving marked content.
    (c) Unencrypted Retransmission. Where a multichannel video 
programming distributor retransmits unencrypted digital terrestrial 
broadcast content in unencrypted form, such distributor shall, upon 
demodulation:
    (1) Preserve the broadcast flag, if present, in both the EIT and 
PMT; and
    (2) Use 8-VSB, 16-VSB, 64-QAM, or 256-QAM signal modulation for the 
retransmission.
    (d) Unmarked Content. Where a multichannel video programming 
distributor retransmits unencrypted digital terrestrial broadcast 
content that is not marked with the broadcast flag, the multichannel 
video programming distributor shall not encode such content to restrict 
its redistribution.

[FR Doc. 03-30007 Filed 12-2-03; 8:45 am]
BILLING CODE 6712-01-P