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Oral argument was held Feb. 22, 2005. The Court issued an order March 15 asking for more argument on the standing questions. Our side's brief was filed March 29. The MPAA and FCC filed briefs on April 8. On May 6th the Court decided in our favor, the FCC's Broadcast Flag Order has been vacated.
Here is some background on the case.
On January 30, 2004 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 made 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 believed the Commission's actions in this matter were 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, agreed to litigate the case on behalf of Public Knowledge and the other parties seeking to challenge the FCC decision.
The U.S. Appeals Court for the D.C. Circuit on May 6, in a 3-0 ruling, threw out the Federal Communications Commission's order establishing the so-called "broadcast flag." The decision came in a case brought by Public Knowledge, Consumers Union, the Consumer Federation of America, Electronic Frontier Foundation, the American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library association and Special Libraries Association. The decision can be found here: http://www.publicknowledge.org/pdf/bfcase-decision-20050506.pdf
Now, the issue will move to Capitol Hill. Content companies are asking members of Congress to give the FCC the authority to order the broadcast flag scheme that the court order said the Commission did not have. There are no specific proposals yet, but broadcast flag-related provisions could be attached to any number of bills, perhaps related to the Digital Television (DTV) transition, indecency, or something else.
In the opinion, the court agreed with our argument that the FCC exceeded its authority in creating this broadcast flag scheme. Judge Harry T. Edwards, writing for the court, said: "In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority it now claims."
We couldn't have done it without our co-plaintiffs, Consumers Union, Consumer Federation of America, Electronic Frontier Foundation, American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library Association and the Special Libraries Association.
- Petition for Review, January 1, 2004
- Misc Documents from Petitioners, March 3, 2004
- Opposition to Motion to Hold in Abeyance, March 15, 2004
- Petitioners Opening Brief, October 10, 2004
- Table of Authorities for Opening Brief of Petitioners, October 10, 2004
- Brief for Respondents, November 3, 2004
- Reply Brief of Petitioners, December 2, 2004
- Supplemental Brief of Petitioners, March 29, 2005
- Supplemental Brief for Respondent FCC, April 8, 2005
- Supplemental Brief of Intervenor, Motion Picture Association of America, April 8, 2005