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Broadcast Flag Rejection Jeopardizes Some Terrestrial HD

Last week's decision by a federal appeals court in Washington, D.C. to throw out FCC rules mandating the broadcast flag put a sudden chill in air for broadcast networks and Hollywood.

The anti-recording chip was to be included on all affected devices built after July 1, in order to ease the minds of a jittery Hollywood which has long envisioned the nightmare of having high-quality HD recordings of their expensive, copyrighted product passed from consumer to consumer free of charge, and easily, essentially from terrestrial (not cable or DBS) HD recordings to the world at-large via Internet broadband.

In its ruling, the court said the FCC had "brazenly" overstepped its authority in 2003 when it adopted the concept of the embedded software, because the commission only had jurisdiction over the actual transmission of programs--not the next step pertaining to recording and playback devices, and, in effect, retransmission by consumers.

But the fight is hardly over; it's just relocating from the courts to Capitol Hill. While various consumer and library groups predictably lauded the ruling, outgoing NAB President/CEO Eddie Fritts predictably lamented that "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."

Dan Glickman, president of the Motion Picture Association of America--which spearheaded the effort to get the broadcast flag accepted under the leadership of former MPAA President Jack Valenti--said "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." Stay tuned.