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In a potential conflict of interest, a legislative assistant to Sen. Gordon Smith (R-Ore.), who is currently sponsoring legislation limiting the use and distribution of digital broadcasts, has been hired by media giant Viacom Inc. In January, Smith drafted the Digital Content Protection Act, which calls for wider use of “broadcast-flag” technology, a code inserted into digital audio or visual transmissions that limits the ability of consumers to redistribute that content. Broadcast-flag technology is opposed by many consumer groups but has broad support in the entertainment industry. The bill has not been formally introduced. Keith Murphy, a legislative aide to Smith who has worked closely on the legislation, is scheduled to begin work for Viacom at the end of April. Viacom’s subsidiary, Paramount Pictures Corp., is a member of the powerful Motion Picture Association of America, a forceful advocate for the broadcast-flag proposal. Cable-industry players such as Viacom have a financial stake in such legislation, according to Steve Effros, the former president of the National Cable & Telecommunications Association. “Clearly, programmers have an interest in the broader subject that broadcast flag encompasses, which is trying to deal with digital-rights management, since a lot of cable companies have programming interests,” says Effros. “Cable is dependent on programmers, and the issues of the various windows when programming is allowed to be distributed via television . . . all are affected by the security regarding indiscriminate distribution.” According to the Senate Ethics Manual, “recusal [from legislation or affairs that pose a conflict] is likely necessary” when congressional members and employees narrow down their future job prospects to two or three possibilities. But they are free to continue to work on issues of interest to a prospective employer with the consent of their supervising senator as long as steps are taken to avoid actual and perceived conflicts. “It’s a delicate area,” says Stanley Brand, a former Democratic counsel to the House and an ethics specialist. “I think you need to be particularly careful in any case where you move from the public or private sector. There’s a prudential part of it that would suggest you should insulate yourself from any charge later on. At least that’s how I advise people.”Smith’s draft bill would “authorize the Federal Communications Commission to limit the unauthorized copying and indiscriminate redistribution of digital audio and video broadcast content over digital networks.” The draft legislation would also mandate that the FCC establish a “federal advisory committee consisting of representatives of affected groups from the private sector which shall be given the opportunity to draft and submit a proposal regarding the content of any regulations proposed in such rulemaking process. ” One of the groups that must be included in the committee is the cable industry. Murphy did not respond to calls for comment. Chris Matthews, press secretary for Smith, says that Murphy is still working on the bill and that Smith’s office does not believe it represents a conflict of interest. Matthews added that Murphy has recused himself from other issues involving Viacom, such as legislation that would allow consumers to buy access to individual cable channels, and indecency-related matters. DeDe Lea, executive vice president of government affairs for Viacom, refused to comment. But Fred von Lohmann, a senior staff attorney for the Electronic Frontier Foundation, says cable companies do have an interest in broadcast-flag legislation. “They are all basically singing in the same choir,” von Lohmann says. “Paramount is part of the MPAA, the most vocal supporter of the flag in Washington. It’s their job to carry the water for the industry. No one [in this industry] has broken ranks on this issue.” Viacom is composed of the cable channels BET, Famous Music, and MTV Networks — including MTV, VH1, Nickelodeon, Nick at Nite, Comedy Central, CMT: Country Music Television, Spike TV, and TV Land — along with Paramount Pictures and Paramount Home Entertainment. In the past, Viacom has argued strongly for a broadcast flag. In December 2002, when the FCC was soliciting comments about implementing such regulations, Viacom submitted the following comments: “As the parent company of Paramount, a member of the Motion Picture Association of America . . . if a broadcast flag is not implemented and enforced by Summer 2003, Viacom’s CBS Television Network will not provide any programming in high definition for the 2003-2004 television cycle.” The FCC did implement flag rules in 2003 mandating that all digital televisions adopt some kind of copy-protection mechanism, but the U.S. Court of Appeals for the D.C. Circuit struck down those restrictions last May, saying the commission overstepped its authority. Though Viacom split from CBS earlier this year, spinning off the network and other broadcast properties while holding on to its cable networks, Art Brodsky of the nonprofit technology group Public Knowledge notes that Viacom’s production of HDTV programming has not waned. If anything, the cable giant has more valuable content than ever before.
Joe Crea can be contacted at [email protected].

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