Saturday, May 07, 2005
Buh-Bye to the Broadcast Flag (for now)
Just wanted to update a story mentioned here a couple months back. On Friday the D.C. Circuit shot down the FCC's broadcast flag requirement. (decision here) The court had ruled to give the challengers (library associations and the EFF) additional time to demonstrate that at least one member of their group had standing to sue in their own right. The library associations satisfied the court on this point, and the court denied the FCC's request for Chevron deference, stating that the agency had never been delegated authority to regulate hardware devices except to the extent they are incidental to transmitting the TV signal. Noting that the TV's work just fine on unencrypted signals with the demodulator turned off, clearly the demodulator is not involved in the actual transmission. The flag order imposes regulations on what the devices do after the transmission has been received, which is outside the FCC's delegated authority. As per the WaPo story, the MPAA is pissed, and I'm sure this is not the last we'll hear of the broadcast flag.. But for now, hurray for the good guys!