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Consumer groups challenge “broadcast flag” rules

A coalition of consumer protection groups, including the Consumers Union, the American Library Association, and the Electronic Frontier Foundation, has filed a lawsuit to block the FCC's implementation of the “broadcast flag” rules aimed at stopping digital TV piracy.

Last week, the groups filed documents with the U.S. Court of Appeals in Washington, D.C., charging that the FCC exceeded its jurisdiction, acted in an arbitrary and capricious manner, and failed to point to substantial evidence in adopting the broadcast flag mandate. Left unchallenged, the FCC’s mandate would go into effect by July 1, 2005.

“We’re saying the FCC action went beyond its jurisdiction,” said Fred von Lohmann, an attorney with the Electronic Frontier Foundation (EFF). “We don’t think there was enough basis to support the ruling.”

The “broadcast flag” rule requires that any device capable of receiving digital television signals must include support for a “broadcast flag,” or digital marker, within a broadcast transmission that will prevent copies from being made and distributed without some kind of copy protection being enabled.

The consumer groups said the technology would infringe upon the protected use of content and would disable features that viewers have come to expect in using their own media and equipment.

The FCC, in enacting the rule, bowed to the demands of Hollywood’s major television and motion picture producers, including the Motion Picture Association of America. The producers said they would not move their premium content to digital television if viewers can easily make perfect digital copies and trade them over the Internet.

Thus, the creation of the broadcast flag, which the FCC thinks will stop online distribution of over-the-air broadcasts. The technology affects only terrestrial broadcasting and doesn’t affect cable and satellite systems that already use encrypted conditional access systems. Under FCC rules passed last November, support for the flag must be built into all digital TV devices by July 2005.

The FCC asked the court to delay consideration of the lawsuit, pending its decision on petitions to reconsider the rule, although all of the petitions address unrelated matters. The consumer coalition opposed the FCC’s attempt to postpone the lawsuit.

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