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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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March 10, 2004

FCC Sued Over Broadcast Flag - Yay!

Posted by Ernest Miller

The big news this morning is that EFF, Public Knowledge, Consumer Federation of America, Consumers Union and five library associations led by the American Library Association have filed a lawsuit against the FCC to block the broadcast flag. Read the press release: FCC Faces Suit on Regulation of Digital Broadcast Television. Read the statement of issues: ALA v. FCC, Statement of Issues [PDF].

The only document available is really quite short with only four issues raised:

1) Whether the Commission exceeded its statutory authority under the Act [Communications Act of 1934, which created the FCC] by imposing content redistribution control regulations on equipment manufacturers, including without limitation, whether the Commission erred in interpreting the scope of its ancillary jurisdiction under the Act.
2) Whether the Commission exceeded its jurisdiction by establishing a regulatory scheme that restricts the copying of copyrighted content even though the Commission has not been given any such authority by the copyright laws.
3) Whether the Commission's decision to prescribe the broadcast flag and other findings in the proceeding were supported by substantial evidence in the record, including without limitation, evidence of the the need for the broadcast flag and its costs and benefits.
3) [sic] Whether the Commission acted arbitrarily and capriciously in violation of the Administrative Procedure Act in concluding that the broadcast flag was an appropriate method of DTV broadcast content protection given the acknowledged weakness of broadcast flag technology and the costs and benefits of the broadcast flag.

Unfortunately the third and fourth issues are really longshots. Government agencies have much discretion in these sorts of decisions. Even if their logic is seriously flawed, they generally get away with making bad calls.

However, the statutory authority questions are much stronger. Without more documentation, I can't really judge them, but if the broadcast flag is blocked, it will likely be because the FCC doesn't have the authority to require it.

Here's hoping the lawsuit does succeed!

Comments (2) + TrackBacks (0) | Category: Broadcast Flag


1. doogieh on March 10, 2004 05:42 PM writes...

Regarding the FCC's statutory authority, keep in mind that under the original Telecommunications Act the FCC strictly enforced AT&T's monopoly on telecommunications -- to the point that it could regulate anything anyone wanted to attach to a phone. Every attempt to challenege the FCC's statutory authority during that era (including a challenge to their authority to ban a shoulder rest you could put on your AT&T phone as unauthorized, has failed.

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2. Ernest Miller on March 10, 2004 05:51 PM writes...

True and I make no guesses as to the strength of EFF's arguments (not having seen them). Of course, I think that the other arguments are almost guaranteed losers.

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