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Bye, Bye, Broadcast flags!!!

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Court Nixes 'Broadcast Flag'

By Michael Grebb
Saturday, May 7, 2005

WASHINGTON - In a blow to the entertainment industry, a
federal appeals court on Friday found that federal
regulators overstepped their authority by requiring
consumer-electronics manufacturers to help restrict
digital home recording.

The U.S. Court of Appeals for the District of Columbia
reversed a Federal Communications Commission order that
required makers of consumer-electronics devices capable
of receiving broadcast digital TV signals to recognize a
"broadcast flag," which is code that allows content
owners to place limits on redistribution of digital
content streams. The rule was to apply to devices
manufactured on or after July 1, 2005.

Specifically, the court admonished the FCC for exceeding
what's known as its "ancillary authority" over some
reception devices (consumer-electronics products) by
trying to regulate a function not directly related to the
actual transmissions themselves.

"In other words, the Flag Order imposes regulations on
devices that receive communications after those
communications have occurred; it does not regulate the
communications themselves," the court stated (.pdf).
"Because the demodulator products are not engaged in
'communication by wire or radio' when they are subject to
regulation under the Flag Order, the Commission plainly
exceeded the scope of its general jurisdictional grant."

Public-interest groups, which opposed the original FCC
order as unreasonably restricting fair-use rights, were
beaming on Friday.

"It clearly was a slam dunk," said Gigi Sohn, president
of public-interest advocacy group Public Knowledge.

Sohn said the decision should also help rein in the FCC,
which she claimed has been exceeding its authority on
matters involving new technologies.
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