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FCC Broadcast Flag Struck Down
An anonymous reader writes "CNet is reporting that the courts have struck down the FCC's broadcast flag requirement! 'In a stunning victory for hardware makers and television buffs, a federal appeals court has tossed out government rules that would have outlawed many digital TV receivers and tuner cards starting July 1.'" The EFF has details on the flag, the official ruling is online for examination, and commentary is available from BoingBoing and Ars Technica.
I've put together a collection of links as well as pulling out various key elements of the case: Victory in Broadcast Flag Case! FCC Has No Authority Says Court
This was originally posted on slashdot when the case started, and it is excellent news to hear that the FCC regulation was indeed overruled. It is important to note that this case was about whether the FCC had the jurisdiction to impose such regulations, not on the legality of the regulations themselves. If congress decided to pass a law requiring the broadcast flag, it would probably stand.
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As an aside the American Library Association (ALA) has been very active in working to protect our fair-use rights and trying to make copyright law more balanced, even though they might not be as well known here as the EFF and ACLU are. I would highly encourage anyone who cares about these things to help support them
Because the broadcast flag was so technically feeble, it required "robustness rules" to actually enforce it. In other words, equipment manufactures would have to "weld shut" their devices to prevent user tampering. This would've spelt disaster for GNU Radio, which lets you define an ATSC HDTV receiver in software.
As open source, it fails the robustness rules. Heck, as open source, it even encourages "user tampering." With today's victory the project has some hope, and we can see some future innovations exploiting it.
I am a lawyer, but this is not legal advice. If you get your legal advice on slashdot, you're likely to end up as a "guest" of the government.
This is the stronger of the two main ways that the court could have struck down the ruling. Often, it's the *form* of the rule, in paraticular the way the administrative agency chose to make the rule, that gets struck down. This leaves the agency free to pass the same rule through the proper process. (Similar to the way the appellate court struck down the judge's behavior in the microsoft case--the governmet could have sought another order splitting microsoft.)
In this case, it's the *substance* of the rule that was stricken. The FCC *cannot* regulate in this area, and cannot try again.
However, this didn't adress the question of whether or not Congress could grant the power to regulate in such an area, nor whether Congress could pass such a law itself.
hawk, esq.
Wow, that's great news, but isn't it coming a little late in the timeline? If sets on sale in July were supposed to have BF support, you'd think that they would already be being manufactured that way.
Not necessarily, because a lot of HDTV's aren't even really TV's at all - they're monitors. It's up to you to decide what tuner to use, be it a PC tuner or a set-top box.
No PC tuner in existence right now respects the broadcast flag, and the way the flag is implemented, it is not something that can just be "turned on" in new drivers or firmware. It requires another chip on the board. So if you buy a piece of hardware that does not respect the BF, it will never respect the BF, and because tuners are relatively cheap to make and ship, tuner manufacturers were all sitting on the sidelines waiting this out and producing non-BF hardware in the meantime. (No doubt they had updated designs in the wings, but there was no reason to produce them yet.)
It's also worth noting that, AFAIK, equipment couldn't be made after July 1 without respecting the broadcast flag. So manufacturers could have, if they wanted, made sets and tuners right up to June 31 that did not respect it, and then switched over on July 1.
The FCC is an independent agency. It does not take orders from the executive branch. Its powers are delegated to it by Congress through the Communications Act of 1934.
Mea navis aericumbens anguillis abundat
We have stories about the Federal legal decisions almost every day. Yet Slashdotters (and worse, the Slashdot editors) manage to read all these stories without learning anything about how the courts work. Pretty pathetic.
The FCC has legal authority, but it doesn't need constitutional authority. It was created by an act of Congress, not by executive fiat. There are all sorts of entities in the government that aren't mentioned in the constitution but are allowed to set policy and enforce penalties if it is disobeyed.
Remember that the courts can only affect issues that are brought to their attention. If you think the FCC has overstepped its authority in other areas, file more lawsuits.
Well I am happy there isn't a broadcasting flag anymore but what about firewire ports on cable boxes?
If you look at the ruling "FCC Eases Digital TV Transition for Consumers."(PDF) it states that all digital cable boxes must have a firewire port. This port is used to control the box and record from it. Now this has been in effect for a while now, although it takes alot of effort and showing your cable company this pdf article to get them to give you a box that has a firewire port and that port is enabled. My concern is the ruling seems to also removes the FCC's power in this area as well.
And the worst part is MythTV just started supporting recording over firewire...
just because your a schizophrenic doesn't mean people arn't really out to get you