06.21.2004 12:00 PM
U. S. Court of Appeals allows case against FCC's “Broadcast Flag” to move forward
Public interest and consumer groups fighting the FCC's broadcast flag won a key procedural victory when the U.S. Appeals Court for the D.C. Circuit turned down the FCC's request to prevent the case from moving forward pending agency action.
The lawsuit challenging the content control broadcast flag, filed Jan. 30, argues that the FCC does not have jurisdiction to impose design requirements on consumer electronics devices, and even if it did have the authority, there is no problem with “indiscriminate distribution” of digital TV signals.
In response, the FCC asked the Court on March 3 to hold off any action on the case, saying the administrative process for completing consideration of the broadcast flag was not yet complete because petitions for reconsideration were still being considered at the agency.
Public Knowledge, Consumers Union and others responded on March 15 that the Court should turn down the FCC's request because the reconsideration phase of the FCC proceeding is based on the assumption that the FCC has the power under the Communications Act to proceed with the broadcast flag. The lawsuit brought by the coalition of consumer groups and libraries disagreed with that premise when it challenged the FCC's fundamental authority.
“This decision is important because requests like the one the FCC filed are rarely turned down,” Public Knowledge president Gigi B. Sohn said. “Had the court decision gone the other way, the broadcast flag would have become the television standard regardless of the ultimate outcome of the case.”
The other petitioners in the suit are the American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Libraries Association, Consumer Federation of America, and the Electronic Frontier Foundation.
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