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controversial broadcast flag mandate today, ruling unanimously th at the FCC acted outside the scope of its authority when it adopted broa dcast flag regulations. The FCC regulations stated that a flag should be attached to "over-the-ai r" digital content--both network and local station programs, such as mov ies or prime-time series. Any device with a digital TV tuner can grab th at content, whether it comes over an antenna or through a cable or satel lite set-top box. The flag, basically a piece of code, was to have trave led with any show that the broadcaster wanted to protect. Under the regulations, new consumer electronics devices--including tuner cards for computers--that receive digital TV signals were to have shippe d with the ability to recognize the flag and to respect its copy restric tions. "This is a huge victory on a couple levels," says Ren Bucholz, the Electr onic Frontier Foundation's policy coordinator for the Americas. "The cou rt kind of rebuked the FCC for overstepping its bounds... We're ecstatic that the courts had such wonderful language in this decision and that i t was a unanimous decision."
a case brought by the American Library Associat ion, the Electronic Frontier Foundation, and Public Knowledge. Set to ta ke effect this July, the broadcast flag would have mandated that any dev ice capable of receiving a digital TV signal would have to respect a fla g that would limit your ability to record and copy that program.
"This is definitely a blow to broadcasters as far as determining what is done with digital content once it is given to the consumers," says Miche lle Abraham, principal analyst with In-Stat. A spokesman for the FCC said the agency had no comment on the ruling. Appeal Looks Unlikely With the broadcast flag out of commission for the moment, the FCC and the broadcast industry have several options: The FCC could appeal or the br oadcasters and content owners pushing for the flag could ask Congress to mandate copy protection technology with a new law or to delegate that p ower to the FCC. "This is three appeals court judges saying very unambiguously that the FC C doesn't have authority here," says Bucholz. "So the decision to appeal should be a tough call for the FCC."
National Association of Broadcasters also seemed to point towards a legislative approach. In the statement, Edwar d R Fritts, NAB chief executive officer, said: "We will work with Congr ess to authorize implementation of a broadcast flag that preserves the u niquely American system of free, local television." Fritts's statement also alluded to the fear among broadcasters that Holly wood would stop licensing major movies to them. "Without a 'broadcast fl ag'," Fritts said, "consumers may lose access to the very best programmi ng offered on local television." Technological Impact Whether content will be flagged or not, consumer electronics manufacturer s are still producing hardware that respects it. According to In-Stat an alyst Abraham, "the design cycles can be as little as 3 months on a DVD player, but on products like a TV set, it's 18 months or so, so many hav e already designed their products to meet the flag requirement they expe cted in 2005." But Jeff Joseph, vice president of communications for the Consumer Electr onics Association, said that the flag-equipped hardware arriving in July wouldn't have much of an impact on the consumer. "Every major manufactu rer was in line to comply with the law, so they're definitely shipping p roduct.
is now just something that's t here, and you won't even notice it's there." Joseph points out that the ruling could have its greatest impact on the a rea of innovation.
for the FCC to claim jurisd iction to regulate a specific product, they have to demonstrate there's a very specific and compelling interest and that the regulation itself m ust be very narrowly focused," Joseph said. "If that's the case, it's a very important ruling for innovators, for manufacturers, and ultimately for consumers."
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