Court says FCC's 'broadcast flag' is toast

By Declan McCullagh

Story last modified Fri May 06 08:10:00 PDT 2005

In a stunning victory for television buffs and hardware makers, a federal appeals court has tossed out government rules that would have outlawed many digital TV receivers and tuner cards starting July 1.

The U.S. Court of Appeals for the D.C. Circuit ruled Friday that the Federal Communications Commission did not have the authority to prohibit the manufacture of computer and video hardware without copy protection technology known as the "broadcast flag." The FCC's regulations, which it created in November 2003, had been intended to limit unauthorized Internet redistribution of TV broadcasts.

"The broadcast flag regulations exceed the agency's delegated authority under the statute," a three-judge panel unanimously concluded. (Click here for a PDF of the decision). "The FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission."

Under the FCC rules, starting in July digital TV tuners manufactured would have had to include copy-protection technology--called the broadcast flag--that's backed by the Motion Picture Association of America. The broadcast flag limits the TV recipient's ability to redistribute video clips made from the recorded over-the-air broadcasts.

Friday's ruling represents a sizable setback for the MPAA, which had lobbied for the broadcast flag rules and had intervened in the lawsuit to defend them. It's also a reprieve for makers of HDTV sets, PC tuner cards, and USB and Firewire tuners--which will no longer have to redesign their products to comply with FCC rules.
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In January, the advocacy group Public Knowledge filed suit against the FCC's broadcast rules, arguing that the regulations would sharply curtail the ability of librarians and consumers to make "fair use" of copyrighted works and would curb interoperability between devices.

One result of Friday's ruling is that, if upheld on appeal, the fight over digital TV piracy will return to Capitol Hill. The court noted that the FCC "has no power to act" until "Congress confers power on it" through enacting a law explicitly authorizing the broadcast flag.

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We should all grab what we can WHILE WE STILL CAN!!!!!!!!