Brief for Respondents in American Library Association et al. v. Federal Communications Commission, et al., commonly known as the Broadcast Flag Court Challenge.
The full text of the filing is available here (PDF).
Summary of Argument
The Commission reasonably interpreted the Communications Act as granting it jurisdiction to establish technical requirements for television receiving equipment in order to fulfill its responsibility of implementing the transition to digital television. Sections 1 and 2(a) of the Act, 47 U.S.C. 151, 152(a), confer on the agency regulatory jurisdiction over all interstate radio and wire communication. Under the definitional provisions of section 3, 47 U.S.C. 153, those communications include not only the transmission of signals though the air or wires, but also “all instrumentalities, facilities, [and] apparatus” associated with the overall circuit of messages sent and received - such as digital television receiving equipment. Furthermore, sections 4(i) and 303(r) of the Act, 47 U.S.C. 154(i), 303(r), vest the Commission with authority to establish rules that are necessary to carry out its specific responsibility for effectuating the transition to digital television.
The legislative history of the Communications Act confirms that Congress intended to grant the FCC broad authority over equipment used in connection with radio and wire transmissions. Under court decisions including United States v. Southwestern Cable Co., 392 U.S. 157 (1968), the Commission has discretion to exercise such authority when the need arises, even if it has not previously regulated in a particular area.
Petitioners are mistaken when they assert that Congress precluded the broadcast flag rules by adopting legislation specifically addressing different technical requirements for television receivers and other communications equipment. None of those statutory provisions addresses protections against redistribution of digital broadcast programming, or demonstrates a congressional understanding that the FCC lacks general rulemaking authority over television receiving equipment. Congress has sometimes clarified the agency’s authority to establish technical requirements or overridden the agency’s exercise of discretion on particular technical matters, but it has never withdrawn the relevant regulatory authority conveyed under the core jurisdictional provisions of the Act.
The Commission also reasonably concluded that the broadcast flag require- ments are appropriate to protect and further Congress’s plan for a transition from tradi- tional analog television to a digital television system, which will provide higher-quality pictures and sound while making available additional radio spectrum for new uses.
Consistent with extensive comments in the agency record, the FCC concluded that a side effect of the move from analog broadcast technology to digital broadcast tech- nology is the creation of new opportunities for widespread, unauthorized redistribution of broadcast television programming over the Internet and in other ways. Absent some new form of protection, digital broadcast television programming would be comparatively less secure against such widespread, unauthorized redistribution than programming distributed over other television systems such as satellite and cable - technologies that compete against broadcast television for programming. In light of those considerations, the Commission permissibly determined that a failure to provide digital broadcasters some technical means of protecting against unauthorized redistribution would cause content owners to withhold their higher-value content from the digital broadcast television medium, and thus endanger the success of the statutorily mandated DTV transition as well as compromise the public interest in the availability of high-quality programming via free, over-the-air television. The Commission identified broadcast flag technology as a currently available technology that can prevent these harms at acceptable cost.
The FCC’s adoption of content-protection requirements thus rests on rational and permissible predictions about the communications industry and valid communications- policy objectives. The agency may make action to avoid these predicted harms before they materialize on a large scale. It also was unnecessary for the Commission to await a perfect solution to the clear redistribution problem before taking action to address it.
Finally, the broadcast flag rules do not conflict with the Digital Millenium Copyright Act, 17 U.S.C. 1201)(c)(3), or any principle of copyright law. Although the DCMA does not itself require any particular technology for copy protection, that statute does not prevent the FCC from requiring such technologies under the separate authorization of the Communications Act. The broadcast flag rules also leave undisturbed the general policies embodied in the copyright laws. The requirement of installing broadcast flag technology in digital television receiving equipment need not interfere with consumers’ ability to copy digital broadcast programs for their personal use. Furthermore, the copyright laws and fair use doctrine do not encompass a right to engage in unlimited redistribution of copyrighted material.
