Federal Court Kills Broadcast Flag Rule

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Federal Court Kills Broadcast Flag Rule Broadcasters, movie studios expected to appeal to congress to change law By Charlie White

(5/6/05) A federal appeals court struck down an FCC ruling requiring broadcast flag technology, eliminating the requirement that all receivers be equipped with the anti-piracy devices by July of this year. The U.S. Circuit Court of Appeals for the District of Columbia said that the FCC overstepped its bounds in requiring all receivers, computers, and video players to include the anti-copying technology. In a unanimous ruling, the three-judge panel agreed that the FCC ?exceeded the scope of its delegated authority? when it made the broadcast flag rule in 2003.

The next venue for broadcasters and content owners aiming to get the technology into televisions, personal computers and recording devices will be the United States Congress, where they will attempt to have a law passed that supersedes the Communications Act of 1934. The court cited that act as the basis for its decision that the FCC overextended itself in requiring certain devices to prevent unauthorized copying of program content. Said Judge Harry T. Edwards during oral arguments last February, ?You?ve gone too far. Are washing machines next?? In his opinion, Judge Edwards wrote that the FCC can?t regulate consumer electronics devices after broadcasts have already been received. Wrote Edwards, ?The broadcast flag, a digital code embedded in a DTV broadcasting stream, prevents digital television reception equipment from redistributing broadcast content. The broadcast flag affects receiver devices only after a broadcast transmission is complete.?

While broadcasters pressed the FCC to pass the broadcast flag rule, citing fears that copyrighted content would be available for free everywhere, critics of the rule cried foul. They said consumers would be preventing from copying programs for legitimate reasons, and librarians wouldn?t be able to distribute research materials to students and library users. Consumer groups also complained that the new broadcast flag devices would raise prices of digital TVs and other viewing devices. They added that the right to copy movies and television shows was already well established in the ?Betamax case? decided decades ago.

Studio representatives from the Motion Picture Association of America (MPAA) and broadcasters from the National Association of Broadcasters (NAB) warned that without the broadcast flag in place many content providers and broadcasters may refuse to air digital content without any such protection. They emphasized that over-the-air broadcasts can?t be as well-protected as that of programming delivered via cable or satellite, using present technology. Said Dan Glickman, the head of the MPAA, ?If the broadcast flag cannot be used, program providers will have to weigh whether the risk of theft is too great over free, off-air broadcasting and could limit such high quality programming to only cable, satellite and other more secure delivery systems.?

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