US Court of Appeals Strikes Down Broadcast Flag Regs

The U.S. Court of Appeals for the DC Circuit today struck down the FCC’s so-called "broadcast flag" regulations. Those rules, issued in November 2003, required all digital television receivers, personal video recorders, personal computers and similar consumer devices manufactured after July 2005 to include technology that would recognize “flags” embedded in DTV broadcasts and prevent the broadcast from being copied or redistributed after it was received. Critics had worried that forcing all DTV devices to contain broadcast flag technology would increase costs to consumers, disrupt interoperability, stifle valuable innovation, and strip consumers of many lawful uses of the digital content.

The unanimous decision found that the FCC, in trying to regulate consumers’ use of TV receivers after broadcasts had been completed, exceeded the authority conferred on it by Congress:  “In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority.”  The lawsuit was brought by Public Knowledge on behalf of the American Library Association and other library groups, the Consumer Federation of America, Consumers Union, and the Electronic Frontier Foundation.