Hardware makers and television lovers alike won a big victory when the U.S. Circuit Court of Appeals for the D.C. Circuit ruled early May 6 that the Federal Communications Commission lacks the authority to ban the manufacture of computer and video hardware that doesn’t include so-called "broadcast flag" copy protection technology.
"It's a great decision on a lot of different levels," Electronic Frontier Foundation attorney Jason Schultz tells AVNOnline.com, "but primarily for people who want to use their own TiVos and their own computers to record television. It's all about the future of television.
"The motion picture studios had gone to the FCC asking that they control what you record at home and what you can't, and the FCC agreed and handed over the keys to your own TiVo to the studios," he continues. "And we challenged that, saying the FCC doesn't have the right to decide what you're going to do with TV in your own home. We're very happy."
Circuit Judge Harry T. Edwards, in the ruling of the three-judge panel, wrote: "The result that we reach in this case finds support in the All Channel Receiver Act of 1962 and the Communications Amendments Act of 1982. These two statutory enactments
confirm that Congress never conferred authority on the FCC to regulate consumers’ use of television receiver apparatus after the completion of broadcast transmissions."
Edwards called the FCC's argument that it had "discretion" to impose broad authority over equipment tied to radio and wire transmissions, even if the panel hadn't regulated previously in particular areas, "an extraordinary proposition.”
"The [FCC] position in this case amounts to the bare suggestion that it possesses plenary authority to act within a given area simply because Congress has endowed it with some authority to act in that area," he wrote. "We categorically reject that suggestion. . . . Because the Commission exceeded the scope of its delegated authority, we grant the petition for review, and reverse and vacate the Flag Order insofar as it requires demodulator products manufactured on or after July 1, 2005 to recognize and give effect to the broadcast flag."
The FCC created the broadcast flag regulation in November 2003. The American Library Association led litigation to block the regulation, and the Electronic Frontier Foundation joined.
EFF attorney Schultz says that the libraries stake in the case is related to the fact that libraries have evolved into being more than just book repositories; they've become as much television and video libraries. The broadcast flag, he says, "restricted their ability to offer digital television to their patrons. We all kind of came together to challenge the FCC power grab, and I'm glad the court saw it for what it was."
The irony though, Schultz points out, is that the court cited its own earlier decision, upholding the movie industry's argument that the FCC doesn't have the right to regulate movie content for decency, and used it against Hollywood's support of the broadcast flag.
"Some years back, the [Motion Picture Association of America] sued the FCC for trying to regulate movie content . . . and the MPAA won by pointing out the FCC only has limited jurisdiction over broadcast and not over things like home movies and rentals," Schultz said. "The court kind of threw that back in their face."
The FCC had yet to respond to requests for comment about the D.C. Circuit Court panel ruling before this story went to press.
