More Arguments Sought in D.C. Appeals Suit on Broadcast Flag
More written arguments are required before the U.S. Appeals Court, D.C., can decide “conclusively” whether a coalition of consumer and library groups that challenged the FCC’s authority to impose broadcast flag rules have the “Article III standing” to do so, the court ruled Tues.
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Petitioners challenging the Commission’s standing include Consumer Federation of America, Consumers Union, Electronic Frontier Foundation, Public Knowledge, the American Library Assn., the Assn. of Research Libraries, the American Assn. of Law Libraries, the Medical Library Assn. and the Special Libraries Assn. In a Jan. 2004 filing, they said the FCC violated the rights of TV viewers and computer users by unlawfully requiring all devices with demodulators to comply with the ATSC flag or broadcast flag. The library groups said they use broadcast DTV content for scholarly and other purposes.
The petitioners “have an obvious interest” in the broadcast flag rule and “plausibly contend that they will be adversely affected by its implementation,” the court said. But there remains an unresolved “question” about their standing “to pursue this petition for review,” the court added. The question arose from a “vague and limited challenge” by the MPAA -- which has defended the FCC’s jurisdictional authority to impose broadcast flag -- and an “equally vague and limited response” from the petitioners, it said. Oral arguments didn’t resolve the issue, it said.
The court gave the petitioners 2 weeks to file affidavits, and a brief of no more than 4,000 words, answering questions to determine their qualifications to challenge the FCC’s authority on broadcast flag. For example, the court said, the petitioners must explain whether the broadcast flag will hinder the groups’ ability to “engage in otherwise permissible copying and distribution of television broadcasts to distant locations and, if so, in precisely what way such hindrance is likely to occur.”
The court said the petitioners must identify the “relevant member or members” at risk “and describe the precise nature of the injury that will be caused by the FCC’s adoption of the broadcast flag regime.” The FCC and MPAA will then get 10 days to submit 4,000-word replies, the court said. Dissenting, Judge David Sentelle said the ruling seemed to give the petitioners an opportunity to create a new record “establishing justiciability and jurisdiction not present in the record before us.” He said “the broad invitation” in the majority opinion “appears to me not to ask the petitioner to clarify its standing, but to offer us a further record to create standing where none is present on the record before us.” - - Paul Gluckman