Those who feared Congress would mandate the so-called broadcast flag and obstruct consumers' rights to record adult and other digital television programming for themselves can relax a while. The Senate Appropriations Committee did not propose any amendment to any spending bill that would mandate the technology.
The fear had been that even one committee member might put such an amendment into the spending bill which funds the Federal Communications Commission. A three-judge panel of the U.S. Circuit Court of Appeals for the D.C. District shot down the FCC's 2003 broadcast flag rule in May as going far beyond what Congress allowed the FCC to do.
Public Knowledge spokesman Art Brodsky said in a statement that the Appropriations Committee's inaction on the idea appeared to be a good sign—for now. Brodsky cautioned that the appropriations bill in question could still be amended to require a broadcast flag when it hits the full Senate.
"It's going to be a vigilant watchdog effort on all our parts to make sure that nothing slips in," says Electronic Frontier Foundation attorney Jason Schultz.
"From what we've heard, more and more people are paying attention both inside and outside Congress, and hopefully those in Congress know what's at stake here," Schultz continues. "Constituents don't like it when Congress breaks their TV or makes it more expensive. What the flag does is removes half the channels and the options you would otherwise have. People want to watch whatever they want wherever they want it."
Writing for the appellate panel, Circuit Judge Harry T. Edwards said the All Channel Receiver Act of 1962 and the Communications Amendment Act of 1982 confirmed that Congress never gave the FCC the authority to regulate how consumers use television receiver apparatus after a broadcast has been transmitted.
Edwards also rejected the FCC's argument that, in effect, it had "plenary authority to act within a given area" just because Congress gave it some authority. "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," Edward continued.
That shifted broadcast flag supporters like the Motion Picture Association of America toward Congress. The MPAA has held that the broadcast flag is necessary to guarantee continued high-value programming without fear of piracy.
