The FCC has filed a remarkable brief in the broadcast flag challenge pending before the DC Circuit. (Public Knowledge is leading the plaintiffs in this matter.)
Some background: Back in November 2003, the FCC issued an order (the
broadcast flag rule) saying that all devices capable of receiving a
digital TV signal (or storing DTV files) would have to comply by July
2005 with a set of technical mandates.
The broadcast flag
rule, distilled to its essence, is a mandate that all consumer
electronics manufacturers and information technology companies ensure
that any device that touches digital television content encrypt that
content and protect it against unauthorized onward distribution.
In order to make this
happen, the FCC has established a new and extraordinarily
broadregulatory regime that mandates the use of "authorized" content
protection technologies by virtually every consumer electronics product
and computer product -- including digital television sets, digital
cable set-top boxes, direct broadcast satellite receivers, personal
video recorders (PVRs), DVD recorders, D-VHS recorders, and computers
with tuner cards.
In the context of both the flag rule and the IP-enabled services proceeding that was the subject of Bellhead/Nethead
earlier this fall, the FCC has said that it has "ancillary"
jurisdiction to act. Translation: "Congress hasn't said that we DON'T
have the power to do this, so we're going to go ahead on the assumption
that we do."
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.
FCC believes that it
has simply been restraining itself up until now. Since 1934 (or 1927,
depending on how you count), FCC has had power over all equipment used
in connection with radio and wire transmissions. When the need arises,
it can exercise its authority -- including its authority over PCs,
PVRs, and any new gizmo that has something to do with a communication
of some sort.
1:52:33 PM PermaLink /
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