FCC clarifies that they do, in fact, control everything

The Broadcast Flag mandated by the FCC was the result of content owners and broadcasters coming together and pushing the FCC to support technologies that put control of Over-The-Air (OTA) HDTV broadcasts in the hands of the large corporations. Their fears are simple to understand: all digital content is easily copied without a degradation in quality, and so, it was argued, that HDTV sent over the air would lead to rampant piracy and broadcast rights violations

As we reported earlier, the FCC sided heavily with the view that HDTV adoption rates would remain stiffled so long as the FCC didn't provide protection for the content industry and the broadcasters. So, they passed rules that permit a broadcaster, at its discretion, to embed the broadcast flag into any Digital TV transmissions. This flag will not break existing equipment, but equipment manufactured by the middle of 2005 will need to support the flag's operations if said devices feature an over-the-air Digital TV tuner.

In March of this year challenges were brought against the FCC's authority in this matter when the Electronic Frontier Foundation and eight other public interest groups filed a lawsuit over the matter. The brief was updated with further challenges last October, which merit repeating.

...the FCC has no authority to regulate digital TV sets and other digital devices unless specifically instructed to do so by Congress. While the FCC does have jurisdiction over TV transmissions, transmissions are not at issue here. The broadcast flag limits the way digital material can be used after the broadcast has already been received.

The heart of the matter is rather simple: does the FCC have the legal status necessary to regulate digital TV or not? Susan Crawford has been following this, and posted the brief (PDF) that was filed by the FCC in response to this question, along with her thoughts on the implications of the FCC's increased bravado:

The FCC's brief, filed in response to PK's challenge to FCC's jurisdiction in the flag matter, is breathtaking. FCC's position is that its Act gives it regulatory power over all instrumentalities, facilities, and apparatus "associated with the overall circuit of messages sent and received" via all interstate radio and wire communication. That's quite a claim.

The scope of such a claim is immense, reaching people's PCs and any other conceivable digital television consumption device. Unfortunately, it's evident that much of the FCC's latest legislation (and hubris) comes at the behest of the larger players in the content production industry, which doesn't bode well for consumers. The trifecta of increasingly draconian copyright restriction, combined with the new ability (via the DMCA) of private entities to effectively set their own copyright rules outside scope of the law, and an FCC that thinks it controls as much as it does, create a harsh environment for smaller companies and consumers. Indeed, the FCC's dismissal of 70 years of procedures reflects the potential problems we could face in near future:

[The] FCC can't deny that every single time it has made a rule affecting consumer electronics devices it has had explicit authority from Congress to do so. But its brief argues that none of these statutes "demonstrate[] a congressional understanding that the FCC lacks general rulemaking authority over television receiving equipment." ("Congress didn't tell us we couldn't act.")"

It's clear that there's a desperate need for more legislative oversight in these matters. The FCC should be seeking the will of the people, through elected representatives, before making industy-centric decisions aimed at commercial markets. The irony is, it won't be possible to circumvent the broadcast flag without facing legal repercussions, while at the same time I'm still not able benefit from one of the few pro-consumer rulings the FCC has handed down in the recent past, due to the FCC's apparent disinterest in enforcing rulings for "the little guy"?.