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Appeals court denies broadcast flag

The U.S. Court of Appeals in Washington announced that the FCC misused its authority in mandating the use of technology to protect against broadcast TV programming being illegally duplicated and distributed.

Stating that there is “no statutory foundation for the broadcast flag rules,” federal judges last Friday struck down the existing FCC rules. The appeals court, voting unanimously, said they agreed with the American Library Association, Public Knowledge, and others that had petitioned the court to state that the broadcast flag rules are not part of the FCC’s right to regulate interstate radio communications.

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, noting that the flag also restricts use of all content, even if it is within a consumer’s home.

The broadcast 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 current 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.

The court also said "Congress never conferred authority on the FCC to regulate consumers' use of television received apparatus after the completion of broadcast transmissions."

Last October, nine public interest organizations petitioned 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 brief 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.

Broadcasters and content owners in Hollywood, who have pledged to appeal the ruling, have warned that if safeguards against illegal copying were not employed, they would not make high-profile content available to consumers.

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