Court Questions FCC’s Authority On Broadcast Flag
The U.S. Appeals Court, D.C., questioned whether the FCC overstepped its authority in enacting broadcast flag requirements for DTV when Congress had withheld from the Commission power to control TV receiver designs. During oral argument Tues., 2 of the 3 panel judges appeared to scold the FCC for exceeding its statutory boundaries in setting broadcast flag rules designed to prevent retransmission of video content over the Internet and are supposed to take effect July 1. “You're out there in the whole world regulating. Are washing machines next?” asked Judge Harry Edwards.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
FCC attorney Jacob Lewis acknowledged the Commission never had exercised such ancillary power, but maintained it was permitted by Congress since the lawmakers didn’t explicitly outlaw it. But Edwards said: “Ancillary does not mean you get to rule the world. You don’t regulate beyond this line.”
Edwards also disputed FCC claims that the flag was necessary to complete the DTV transition: “The digital transition will go forward with or without this.” The Commission shouldn’t be in the business of selling hardware, he said, by requiring devices such as TiVos, digital video recorders and cell phones to be able to block copying of digital TV content. Judge David Sentelle agreed. He acknowledged entertainment companies may not be willing to broadcast high quality content without being protected, but said that wasn’t the FCC’s problem.
The groups challenging the FCC regulation include Consumer Federation of America, Consumers Union, Electronic Frontier Foundation (EFF) and Public Knowledge. They allege the FCC acted outside its statutory authority by attempting to protect copyright holders through a mandate similar to that previously rejected by Congress in the Digital Millennium Copyright Act.
Sentelle questioned whether the groups could legally challenge the FCC order, since the rules broadly affect TV viewers. Appeals courts require suing parties to show a particular injury before judges will consider a case. “Why do you have standing?” Sentelle asked: “What is your harm?”
The consumers groups’ attorney, Pantelis Michalopoulos, argued the broadcast flag would preclude libraries from copying TV programs for educational purposes. “So you are saying the library association’s fair use rights would be adversely affected by this rule?” asked Judge Judith Rogers. The FCC has “trespassed on no man’s land,” Michalopoulos said. The appeals court could decide the case within months, an attorney said.
Meanwhile, the EFF released a guide that teaches consumers how to build an HDTV recorder unaffected by the constraints of the broadcast flag. The group is encouraging consumers to hold build-in sessions to build HDTV recorders.