February 22, 2005 9:13 AM PST

Court questions FCC's broadcast flag rules

WASHINGTON--A federal appeals court on Tuesday sharply questioned whether the Federal Communications Commission has the authority to ban certain types of digital TV receivers, including peripheral cards, starting in July.

Two of the three judges on the District of Columbia Circuit panel said the FCC never received permission from Congress to undertake such a sweeping regulation, which is intended to encourage the purchase of digital TV receivers that curb Internet distribution of over-the-air broadcasts of programming such as movies and sports.

"You're out there in the whole world, regulating. Are washing machines next?" asked Judge Harry Edwards. Quipped Judge David Sentelle: "You can't regulate washing machines. You can't rule the world."

In November 2003, the FCC said that every product sold in the United States after July 2005 that can receive digital TV broadcasts or digital TV streams must be able to recognize a "broadcast flag." Such products--ranging from TV sets to computer tuners made by Elgato Systems and Hauppauge Computer Works--are permitted to deliver high-quality digital output only to devices that also adhere to the broadcast flag specification.

The groups challenging the FCC's broadcast flag regulation include the American Library Association, the Association of Research Libraries, the Medical Library Association, Public Knowledge and the Electronic Frontier Foundation. They argue that the FCC exceeded its authority, that Congress should be responsible for making copyright law, and that librarians' ability to make "fair use" of digital broadcasts will be unreasonably curtailed.

But one of the judges, Sentelle, suggested that the library and other nonprofit groups challenging the FCC's rule would not suffer the kind of particular harm necessary to allow the case to proceed.

"You have to have a harm that distinguishes you from the public at large," Sentelle said during oral arguments. "If there is not a particularized harm, you do not have standing...There may be someone from the industry who can come forward." Edwards also said he was concerned about the groups' "standing," referring to the judicially recognized right to sue. Special rules exist for organizations suing federal agencies.

From the perspective of the entertainment industry, the broadcast flag is needed to encourage over-the-air distribution of valuable content. Without the FCC's action, the Motion Picture Association of America has argued, the threat of Internet piracy would imperil the future of digital TV.


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All your washers are belong to us!
What is there to say other then HAHA. :-)
Posted by Jonathan (832 comments )
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MPAA and Broadcasters never provide content
I'm sorry but most broadcasters don't ever provide the content they own. Over the last 30 years they have produced 100s if not 1000s of TV shows and only distribute 50 to 100 of the shows after production. Many short run shows, demanded by fans will never see the light of day if it weren't for tapings of the works off live TV.

The same goes for news, pre-50s movies, and historical movies. The content owners don't distribute or make available the media. Much of which is now in the public domain. With the new infrastructure even if content were to become in the public domain in 30 years no one could record, save, or access it without the broadcast (distribution) company's say so for either a modest or most likely large fee. No information will be free or any form of media or content if the corporations have their way.

History will not be written by the victor it will be edited by the copyright holders.
Posted by zeroplane (286 comments )
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Fine with me...

"the Motion Picture Association of America has argued, the threat of Internet piracy would imperil the future of digital TV."

That is just fine with me. Digital TV's are worthless for consumers. There isn't a single viable use for them that a regular TV wouldn't handle just as well. No one needs to count the sweat beads on the forehead of a football player.

The only reason Digtial TV is being pushed by all of the powers that be is because it gives the goverment more control, it gives Hollywood more control and it makes both Hollywood and electronics company a ton of money they don't deserve.

With the cr*p on TV who needs clearer sharper picture. Too many commercials, too much editing, too much beeping out bad words that any two year old can figure out. Too much compressing the edit credits for more commercials, too much overall cr*ppy programming, too many mini-commercials on the bottom of the screen when a program comes back on after a commercial break. Too much too much too much.

Any consumer that buys in to the digital TV cr*p is a moron, idiot and jack*ss.

Posted by (336 comments )
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Too True
...and it isn't just in the USA. Australian TV is not worth watching for similar reasons.
Posted by Andrew J Glina (1673 comments )
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The future via the past
In a prior Administration's FCC, they had video broadcasters integrate a specific duration of a "black" signal before and after the commercials. This was done for at least one reason, to allow for "commercial skip."

Now, as is demonstrated on the commercial DVDs we rent/buy - we can no longer skip intros/trailers/ads.

Before the introduction of DBS, the tv satellite industry was essentially "free." Somewhat like VHF/UHF broadcasters. Then, Videocypher encryption came along, and localities zoned out the larger than 1 meter dishes from residential areas. No longer is there much in the way of "free" satellite.

Local cable has no commercial incentive to keep costs down, and the local goverments aren't likely to help the consumer either - as their funding is supplanted by demands they levy on the cable companies.

Current satellite distributors aren't that far off. DirecTV is on record as ferociously targeting customers that may have purchased certain technological devices that they deem illegal (not the governments).

And us?

We get the 'privilege' of paying more, and more, each time they (media distributors/manufacturers) want us to.

When is someone going to help us for a change?

Why should we pay more than once for receiving the same signals? (extra outlets) We don't do it for our phones in the house.

Why should cable/satellite distributors charge "a few dollars more' just for pushing a few buttons and sending one more channel?

Enough for now.

People need to think more of what is happening - and how it is whittling away your discretionary income.
Posted by memyself&i (2 comments )
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FCC princes about to be dethroned?
So the FCC got caught with both hands in the cookie jar. Is anyone surprised? I'm not.
THe FCC has determined that there ought to be a price for speech in the form of content, and that users should pay, forget about "free" ( or should we say 'minimum charge, for now') speech.
I agree that protecting copyright, and ownership is important. I further agree that "content" has a right to be supported by payment for use.
Otherwise, what's the incentive for new and better content?
But, I draw the line at restriciting content availability through the use of devices which cost me more money to obtain content.
THe free marketplace, if allowed to operate, will determine winners and losers in the coming "content wars."
But the marketplace is not free, and won't be as long as the FCC and FTC continue to allow cable monopolies, and encourage restricted access.
Cable and telephone lines, over-the-air broadcasts, ALL must be forced to allow competitive access. Only then will we see tons of content at reasonable pricing.
Posted by bdennis410 (175 comments )
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