PHILIPS NOT IN TALKS TO CHALLENGE BROADCAST FLAG IN COURT
Philips isn’t in negotiations with any group “about going to court” to challenge the FCC’s adoption of broadcast flag rules, Thomas Patton, the company’s vp-govt. relations, told us Mon. in an interview. “We certainly reserve all of our rights,” he said, and stand by past statements on potential legal challenges to the broadcast flag rules and the Commission’s jurisdictional authority to impose them. The rules are designed to limit unauthorized Internet distribution of broadcast content.
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Patton’s comment was in apparent contradiction to statements Fri. in a panel discussion on copyright protection and the broadcast flag sponsored on Capitol Hill by the Progress & Freedom Foundation (CD Nov 17 p2). There, Michael Godwin, a lawyer for Public Knowledge, one of the groups involved in the talks, said a coordinated strategy for challenging the broadcast flag in the courts was being discussed. Godwin said he believed there was a good chance the U.S. Appeals Court, D.C., or some other circuit court “might strike it down.”
Not only is Philips not discussing a possible court challenge with other groups, but “we haven’t made up our own minds about what we're going to do,” Patton told us. He emphasized that the FCC “gave us an awful lot of what we asked for,” including a July 2005 compliance deadline, objective criteria for judging technologies, and assurances of “reasonable and nondiscriminatory” licensing terms. “Philips will work within the process that is just now beginning to assure that we come to effective technological solutions for the stated objectives of the FCC ruling,” Patton said. Although he said Philips wasn’t talking with consumer groups about challenging the flag, he acknowledged his company had worked closely with those groups and would continue to do so because “they represent the consumer and so do we.” Patton said Philips viewed the flag ruling as “the start of the process at the FCC to find effective technological solutions” to achieve the dual objectives of preventing “indiscriminate” Internet transmission of HDTV broadcasts while preserving for consumers “their current fair-use rights and expectations.”
As for Philips’ reserving its right to challenge the ruling through litigation, Patton said “we don’t know where this [process] is going to go.” He said “we got what we wanted with respect to [an open] process,” but no technology has been identified or selected. But he said “if that process falters, and the government is going to pick technologies to solve Digital Age problems, we want those technologies to be available on reasonable and nondiscriminatory terms.”
Patton emphasized that Philips “wants to work constructively within the process that has been set out to develop effective, workable technological solutions to achieve the stated objectives.” On whether Philips might base a court challenge on objections to the FCC’s jurisdiction to set broadcast rules, Patton said his company had no qualms about its authority “at this time.” He said if all it took to establish the FCC’s jurisdiction on broadcast flag rules would be “for Congress to say so, then they'll say so.” Lacking such congressional mandate, he said, Philips believed “it’s arguable” whether the FCC currently had that authority.