Although styled as a narrow bill giving the Federal Communications Commission only "limited authority" to impose licensing conditions on new HD radios and satellite radios from XM and Sirius, H.R. 4861 is a fundamental attack on traditional home taping practices that consumers have engaged in since the first analog cassette recorder reached the U.S. market in 1964, and the reel-to-reel recorder decades before.

Like other proposals shopped around by the Recording Industry Association of America, the bill is not just a "flag" proposal aimed at preventing mass redistribution of music over the Internet. The bill gives the FCC remote control over consumers’ right to engage in reasonable and customary "unauthorized" recording, even in the privacy of their homes for noncommercial purposes. Virtually all home recording is "unauthorized" by copyright owners. But as the Supreme Court held in the Betamax case, that does not make it "unlawful." Exercising their "fair use" rights under the law, consumers have lawfully been making unauthorized tapes of music off the radio for more than 50 years.

In recent Congressional testimony, the head of the RIAA said "the one-way method of communication [enabled by HD radio] allows individuals to boldly engage in piracy with little fear of detection." In other words, the RIAA believes that when Members of Congress, their staff, and their constituents tape a song off the radio they have engaged in piracy and ought to be criminally prosecuted.

Since there has been no showing of harm with traditional home taping practices, it would appear that the legislation is aimed at killing HD radio and innovative new products being launched by satellite radio companies. The handheld satellite radio devices, which are fully compliant with the Audio Home Recording Act, would allow subscribers to store music they have lawfully received via satellite. Yet, the proposed legislation would authorize the FCC to impose copying and distribution limitations on their use.

Manufacturers of these new satellite radio devices will pay the royalty fees established by Congress in the Audio Home Recording Act to compensate for these recordings, and the devices protect against digital recording and uploading to the Internet. In effect, the RIAA appears to be looking for double protection and double compensation.

Finally, the bill appears to grant to performing rights and mechanical rights societies the explicit right to circumvent technological measures used by satellite radio companies to ensure that their signal is not captured by non-subscribers. This comes from the same groups that have argued that a consumer should never have the right to circumvent a technological lock, even to engage in a fair use activity. Even more remarkably, the bill would require satellite radio companies to give these organizations a license on either a "gratuitous basis" or some nominal fee so that they could listen to all the programs delivered by the companies-saving them from subscribing to the service for a modest monthly charge, as nearly 10 million consumers already have done.

We are encouraging our members and allies to oppose this legislation. Follow these links to learn more.