Today, the D.C. Circuit held oral arguments in ALA v. FCC, the court challenge to the FCC Broadcast Flag requirement. Briefly, the broadcast flag is a technoligical mandate that would require all hardware capable of receiving a DTV signal, including general purpose computers, to include circuitry that would prevent the redistribution of any digital broadcast flagged as protected.
Susan Crawford argues that the broadcast flag case is just as important as Grokster: “Like the Grokster case, the flag situation raises this question: can one industry force another to constrain new general purpose technologies in the name of copyright protection? Like the CALEA dispute (prompted by the demands of another great industry — law enforcement), the flag represents an attempt to have high-tech innovators ask permission before innovating.”
The ALA brief offers three challenges to the regulations:
- The FCC lacks authority to regulate the design of television receivers and therefore lacks the authority to impose a broadcast flag requirement, goes beyond Congressional intentions to limit the Commission’s authority over television design.
- The Braodcast Flag regime impermissibly conflicts with Copyright law
- The standards the FCC used to determine that the broadcast flag would solve a problem was arbitrary and capricious.
GWU 2L blogger LuminousVoid attended today’s oral arguments and provides a report of the proceedings.
Declan McCullagh reports on the arguments for News.com Court questions FCC’s broadcast flag rules: “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.”
The NY Times previewed the oral arguments and discussed one potential effect of the case: Federal Effort to Head Off TV Piracy Is Challenged: “If content creators refuse to provide digital programming because of piracy concerns, consumer demand for digital television will be low, which means a slower transition to all-digital broadcasts. And that, in turn, would mean no revenue for the government from spectrum auctions.”
Ed Felten replies: “P2P infringement gives broadcasters a powerful incentive to offer higher-quality, higher-resolution content. High-res content makes legitimate broadcast service more attractive to viewers. P2P versions can’t match these increases in resolution because doing so would make P2P files much bigger, clogging P2P systems with enormous files and making downloads much slower. If broadcasters have to “compete against free” their best hope is to actually compete, by improving their product — especially when the competitor can’t match the improvement.” Broadcast Flag in Court.
HDNet’s Mark Cuban urges the FCC to call the broadcasters’ bluff and find out whether or not the broadcast licensees can broadcast HD content without a broadcast flag: “We dont need the broacast flag. It accomplishes absolutely nothing other than to set a precedent that the content industry can intimidate the FCC….”
The AP reports on Congressional efforts to speed up the transition to DTV: House Looks at Ways to Speed Digital TV
The December 2006 date isn’t a hard deadline; according to law it could be pushed back until 85 percent of homes in a market can get digital TV. Nationally, only 12 percent of homes have digital sets, according to the Consumer Electronics Association.
Two leading House Energy and Commerce Committee members – Reps. Joe Barton, R-Texas, the chairman, and Fred Upton, R-Mich., said they might introduce legislation that would eliminate the 85 percent provision in order to speed the transition.
During the last Congress, Sen. McCain introduced a bill in the Senate to speed the transition to DTV.