Vacate Broadcast Flag Rules, Groups Urge D.C. Appeals Court
The FCC exceeded its statutory authority by enacting broadcast flag requirements for DTV despite Congress having “specifically withheld” power from the Commission to control TV receiver designs, plaintiffs told a federal appeals court Mon. In an opening brief filed at the U.S. Appeals Court, D.C., a coalition of 9 consumer and education groups asked the court to set aside FCC’s broadcast flag mandate (CED Feb 5 p2).
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In the brief, the groups -- including Consumer Federation of America, Consumers Union, Electronic Frontier Foundation and Public Knowledge -- alleged the FCC acted outside its statutory authority “by attempting to protect copyright holders through a mandate similar to that previously rejected by Congress in the Digital Millennium Copyright Act, and by usurping the prerogative of Congress to create and define the scope of copyright.” The plaintiffs said the Commission is guilty of “arbitrarily and capriciously promulgating” broadcast flag rules “in the absence of substantial evidence that it is needed, and where the technology will not resolve the problem it is intended to address.” The FCC is due to file its brief Nov. 3, and oral arguments in the case have been scheduled for Feb. 22.
The “asserted aim” of broadcast flag rules was to prevent the unauthorized “indiscriminate redistribution” of DTV content across the Internet, the brief stated. However, the FCC mandated the technology “without any proof that DTV programs have ever been placed on the Internet,” the groups said. Moreover, they said, the Commission acted “in the face of undisputed evidence” that broadcast flag rules “will be entirely ineffective at stopping any pirate” armed with a legacy DTV tuner that doesn’t recognize the flag. “The FCC equivocated from the beginning over whether Congress had empowered it to promulgate such a rule, but nevertheless decided that it could dictate, for the first time, how consumer electronics used in millions of American homes should be designed,” the brief stated.
The groups said the broadcast flag “has a wide sweep,” by creating “a whole new regime of technical and copyright-related regulation in one stroke.” Moreover, they said, the FCC has estimated the costs of implementing broadcast flag rules in CE devices would be minimal. But it’s clear that implementation “costs something, and the added cost will likely be borne by consumers, if it has not been passed through already by manufacturers anticipating the rule’s onset,” they charged.
Flag rules are anti-consumer in that they increase the complexity and diminish the functionality of “a broad range” of CE devices, the brief alleged: “Consumers buying DTVs in the future will have to determine whether their existing peripheral devices will be compatible with flag-equipped devices, whether flag-compliant devices from different manufacturers are interoperable, and what uses of flagged content will be permitted. For instance, any flagged broadcast material that is recorded onto a DVD will not be viewable on existing non-flag-compliant DVD players.”