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FCC 'crosses the line' with broadcast flag - court

Overreaches with DRM order, judge says

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The US Federal Communications Commission (FCC) overstepped its authority by requiring devices capable of receiving digital TV broadcasts to recognize data called a 'broadcast flag' that can prevent copying, a federal judge has said.

US Circuit Judge Harry Edwards told the FCC that it had "crossed the line" when it required DRM technology to be included in all DTV devices on sale in the USA from 1 July. This would include TVs, set top boxes, PC tuner cards, VCRs, DVD players, and similar devices.

The FCC argued that its ancillary powers authorize it to regulate the reception of broadcasts, not just their transmission. While Congress did not authorize the Commission to regulate the proper designs of the devices, it also didn't expressly forbid it, which FCC takes as a license to issue specifications.

"Ancillary does not mean you get to rule the world," judge Edwards observed.

Judge David Sentelle wondered if FCC thought it could regulate washing machines, since Congress didn't expressly forbid that, either.

In response to FCC whining that without adequate DRM technology, digital broadcasts would be limited, Judge Sentelle noted that, while this might be regrettable, it is not the FCC's responsibility. "It's going to have less content if it's not protected, but Congress didn't direct that you maximize content," he said.

Unfortunately, there is a legal detail here that might moot the whole issue. Judge Sentelle noted that the plaintiffs, largely consumer and library groups, might not have standing to make a complaint against FCC unless they can show how the regulation causes them specific harm.

So it is entirely possible that the complaint will be shut down on a technicality. On the other hand, if it is not, the broadcast industry has additional appeals to mount, and, if finally thwarted in the courts, can always resort to lobbying Congress for the legislation it wants. Thus there is every possibility that American consumers will be stuck with broadcast flag-compliant devices in the near future.

Those thinking of buying DTV-related gear might want to make their purchases sooner rather than later, in hopes that some non-compliant devices are still available. ®

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