FCC 'crosses the line' with broadcast flag - court

[R.A. Hettinga]

<http://www.theregister.co.uk/2005/02/23/broadcast_flag_in_trouble/print.html>

The Register


 Biting the hand that feeds IT

The Register ; Internet and Law ; Digital Rights/Digital Wrongs ;

 Original URL:
http://www.theregister.co.uk/2005/02/23/broadcast_flag_in_trouble/

FCC 'crosses the line' with broadcast flag - court
By Thomas C Greene in Washington (thomas.greene at theregister.co.uk)
Published Wednesday 23rd February 2005 21:48 GMT

The US Federal Communications Commission (FCC) overstepped its authority by
requiring devices capable of receiving digital TV broadcasts to recognize
data called a 'broadcast flag' that can prevent copying, a federal judge
has said.

US Circuit Judge Harry Edwards told the FCC that it had "crossed the line"
when it required DRM technology to be included in all DTV devices on sale
in the USA from 1 July. This would include TVs, set top boxes, PC tuner
cards, VCRs, DVD players, and similar devices.

The FCC argued that its ancillary powers authorize it to regulate the
reception of broadcasts, not just their transmission. While Congress did
not authorize the Commission to regulate the proper designs of the devices,
it also didn't expressly forbid it, which FCC takes as a license to issue
specifications.

"Ancillary does not mean you get to rule the world," judge Edwards observed.

Judge David Sentelle wondered if FCC thought it could regulate washing
machines, since Congress didn't expressly forbid that, either.

In response to FCC whining that without adequate DRM technology, digital
broadcasts would be limited, Judge Sentelle noted that, while this might be
regrettable, it is not the FCC's responsibility. "It's going to have less
content if it's not protected, but Congress didn't direct that you maximize
content," he said.

Unfortunately, there is a legal detail here that might moot the whole
issue. Judge Sentelle noted that the plaintiffs, largely consumer and
library groups, might not have standing to make a complaint against FCC
unless they can show how the regulation causes them specific harm.

So it is entirely possible that the complaint will be shut down on a
technicality. On the other hand, if it is not, the broadcast industry has
additional appeals to mount, and, if finally thwarted in the courts, can
always resort to lobbying Congress for the legislation it wants. Thus there
is every possibility that American consumers will be stuck with broadcast
flag-compliant devices in the near future.

Those thinking of buying DTV-related gear might want to make their
purchases sooner rather than later, in hopes that some non-compliant
devices are still available. .

Related stories

FCC Chairman Michael Powell resigns
(http://www.theregister.co.uk/2005/01/21/michael_powell_resigns_from_fcc/)
Feds OK DVD+R/RW DRM tech
(http://www.theregister.co.uk/2004/08/06/vcps_thumbs_up/)
FCC locks down US TV
(http://www.theregister.co.uk/2003/11/06/fcc_locks_down_us_tv/)

) Copyright 2005

-- 
-----------------
R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'