On January 30, Public Knowledge filed a lawsuit in the United States Court of Appeals for the District of Columbia Circuit challenging a decision by the Federal Communications Commission (FCC) to require consumer electronics and computer manufacturers to read and obey a “broadcast flag” signal embedded in new digital television signals. Public Knowledge filed the lawsuit on behalf of itself the American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Libraries Association, Consumer Federation of America, Consumers Union and the Electronic Frontier Foundation.
The flag’s proponents portray it as a narrow mandate that will only prohibit illegal distribution of digital television content, but in fact it will do much more:
the flag will impose significant strictures and constraints on the design of consumer-electronics and computer products — limitations that will diminish interoperability between new products and old ones, and that even pose interoperability problems among new devices; and
the flag will limit what users can do with broadcast television content to a significantly greater degree than they are limited now.
We will be making two core legal arguments in the case:
In the absence of an express mandate from Congress, the FCC does not have the power under the Communications Act to adopt the flag scheme. The Communications Act of 1934 and its amendments govern what the FCC can and cannot regulate, and nothing in that Act permits the FCC to a) impose broad product design mandates on consumer electronics devices and computers and b) adopt what is, for all intents and purposes, copyright policy.
That even if the FCC has the power to adopt the flag scheme, its actions in doing so are “arbitrary and capricious,” and therefore illegal. We will argue first that the FCC ignored the lack of evidence in the record of the broadcast flag rulemaking that there is a problem with the “indiscriminate distribution” of digital TV programming in ways that harm content companies and second argue that even if such evidence existed, that the flag will not fix the problem in any event.
We believe the Commission’s actions in this matter are extremely vulnerable to this court challenge. Steptoe and Johnson, a top-tier Washington, DC law firm with expertise in FCC matters generally and the broadcast flag matter specifically, has agreed to litigate the case on behalf of Public Knowledge and the other parties seeking to challenge the FCC decision. Briefs in the case likely will be due sometime in the spring and will be argued before the court six to eight weeks after briefing.
