Appeals Court Strikes Down FCC 'Broadcast Flag' Rules

by Glen Shapiro, LawAndTax-News.com, New York

10 May 2005

The US Court of Appeals (DC Circuit) has over-ruled an FCC ruling that required DVD devices to be adapted to prevent uploading of recordings of TV content.

The Court said that the FCC had overstepped its authority in ordering two years that by July 1 all video-recording equipment sold in the US must support the 'broadcast flag', a slight modification to a broadcast digital TV signal, which prevents a recording from being uploaded to the Internet.

The American Library Association said the flag rule threatened to keep research and teaching libraries from distributing digital material in Internet classrooms, among other problems. Entertainment companies, however, said the technology was needed to prevent viewers from recording shows and films and distributing them free online.

Said the Court: "The insurmountable hurdle facing the FCC in this case is that the agency's general jurisdictional grant does not encompass the regulation of consumer electronics products 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." During the hearing, US Circuit Judge Harry T. Edwards told the FCC: "You've gone too far. Are washing machines next?''

The entertainment industry had strong-armed the FCC into making the ruling by threatening to withhold high-value content from broadcast DTV unless content protection was enforced.

In the run-up to the July 1 effective date of the regulation, the Electronic Frontier Foundation and other libertarian groups had been teaching citizens how to bypass the ruling by lawfully adapting their recording devices - happily such manoeuvrings now won't be needed!

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