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Appeals Court Strikes Down Broadcast Flag

The U.S. Circuit Court of Appeals has rejected the FCC’s broadcast flag requirement, ruling that the commission does not have jurisdiction to impose such a mandate.

“It’s a slam dunk in favor of the consumer, library and civil liberty organizations. This case is about much more than the broadcast flag,” said Gigi Sohn president of Public Knowledge. “I urge members of Congress to look at this case more broadly. It’s about the future of Internet protocol-enabled communication.”

NAB President Eddie Fritts begs to differ.

“Without a ‘broadcast flag,’ consumers may lose access to the very best programming offered on local television… We will work with Congress to authorize implementation of a broadcast flag that preserves the uniquely American system of free, local television.”

MPAA President Dan Glickman, president of the Motion Picture Association of America (MPAA)--which led the charge for imposing the flag--echoed Fritts’ sentiments.

“This is a disappointing decision and could create a digital television divide by slowing or eliminating access to high quality digital programming for some consumers.”

Under the original rule, digital OTA receivers sold in the U.S. after July 1, 2005 would have been required to include technology that would detect the flag--digital code embedded into a broadcast stream--and limit what content it transmits.

The driving force for the creation of the flag was to prevent mass distribution of movies and other digital content over the Internet, but the petitioners--the Consumer Federation of America, Consumers Union, Electronic Frontier Foundation, Public Knowledge and several library associations--claim the FCC doesn’t have the authority to impose the flag and that such a restriction could also prevent consumers from sharing content electronically within their homes. The court agreed.

The commission argued that it made its decision based on its ancillary authority under Title I of the Communications Act of 1934 to promote the flag rule; however not all commissioners completely agreed with this premise.

Although Commissioner Abernathy supported the Flag Order, she was concerned that the FCC did not have the jurisdiction to adopt the broadcast flag solution and said in a statement that perhaps this issue was best left for Congress to decide.

“As a general rule, the Commission should be wary of adopting significant new regulations where Congress has not spoken,” she said, but if granted permission, the “obligation involves protection of content that is transmitted via free over-the-air-broadcasting.”