10.11.2004 08:00 AM
Organizations say FCC may have waved broadcast flag too broadly

Nine public interest organizations last week told a U.S. Appeals Court that the FCC exceeded its authority by imposing a broadcast flag regime for over-the-air digital television. Collectively, the group called this a crucial case that will determine how much control the government and Hollywood will have over current and future digital media devices and services.

The flag is a small amount of data added to a digital TV signal that gives instructions on how the programming may be used by devices other than the TV set. The FCC rules require that all TV sets, computers and other devices capable of directly receiving digital TV signals be required to follow the instructions, which will limit distribution of digital programs.

Filing the brief were Public Knowledge, the American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Libraries Association, Consumer Federation of America, Consumers Union and Electronic Frontier Foundation.

The brief said that the FCC asserted jurisdiction it does not have. It also argued that the FCC has no authority to regulate digital TV sets and other digital devices unless specifically granted by Congress, and that the Communications Act and a 1962 law, the All Channel Receivers Act, deliberately put limits on the FCC's authority.

While the FCC does have jurisdiction over TV transmissions, there are no transmissions at issue here because the broadcast flag, which limits the uses to which digital material can be used, does not take effect until after the digital broadcast has been received, the brief said. The flag also restricts use of all content, even if it is within a consumer’s home.

In addition, the parties argued that the rule overstepped the bounds of copyright law, and that the FCC adopted the broadcast flag rule without any evidence that there was a problem in redistribution of digital content.

The case is American Library Association et al. v. FCC (04-1037). The FCC response brief is due Nov. 3. Oral arguments are scheduled for Feb. 22, 2005.

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