Court Overturns FCC’s Broadcast Flag Rule

Court yanks down FCC’s broadcast flag (CNET News)

In a stunning victory for hardware makers and television buffs, a federal appeals court has tossed out government rules that would have outlawed many digital TV receivers and tuner cards starting July 1. The U.S. Court of Appeals for the D.C. Circuit ruled Friday that the Federal Communications Commission did not have the authority to prohibit the manufacture of computer and video hardware that doesn’t have copy protection technology known as the “broadcast flag.” […] (Click here for a PDF of the decision.)

Appeals court tosses FCC’s broadcast flag rule (WaPo – Reuters)

A U.S. appeals court on Friday struck down a Federal Communications Commission rule designed to limit people from sending copies of digital television programs over the Internet. The U.S. Court of Appeals for the District of Columbia said the FCC had “exceeded the scope of its delegated authority” with the 2003 rule, which would have required TV set manufacturers to start using new anti-piracy technology by July 1. “We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver apparatus,” the three-judge appeals court panel said in its opinion.

FCC officials have said copyright protections were needed to help speed the adoption of digital television, which offers higher-quality signals and broadcasters said they would ask Congress to step in to address the matter. The music industry has been plagued by consumers copying and sharing songs for free over the Internet, violating copyright laws. Hollywood wants to prevent similar problems with its programs as it rolls out more digital content. “Without a ‘broadcast flag,’ consumers may lose access to the very best programming offered on local television,” said National Association of Broadcasters President Edward Fritts. “We will work with Congress to authorize implementation of a broadcast flag…”


Under the FCC rule, programers could attach a code, or flag, to digital broadcasts that would, in most cases, bar consumers from sending unauthorized copies over the Web. The regulation required manufacturers of television sets that receive digital over-the-air broadcast signals to produce sets that can read the digital code. Consumers could record and copy shows but would have been limited from sending them. Opponents complained the rule could raise prices to consumers and would set a bad precedent by allowing broadcasters to dictate how computers and other devices should be built.

While Dan Gilmour pronounces this, “A Win for Fair Use, Consumer Rights,” it appears to be merely a very narrow, technical decision about the FCC’s authority rather than about the rights of people who own software to make copies of it.

Jeff Jarvis argues that the entertainment industry ought to take this opportunity and figure out how to make a profit with it, rather than going back to Congress seeking protection.

Update: CNET excerpt shortened to comply with their request. WaPo/Reuters excerpt added to fill the void. OTB has no wish to violate Fair Use guidelines, although we often provide lengthy excerpts of straight news reportage since there are usually dozens of essentially identical variants available, thus little “intellectual property” claim exists.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Steve says:

    Jeff Jarvis argues that the entertainment industry ought to take this opportunity and figure out how to make a profit with it, rather than going back to Congress seeking protection.

    Ahh yes, but rent seeking is so much more attractive. You get reduced competition, higher prices and profits and you don’t have to provide as much output. Going Jarvis’ route would entail you know…competition and that means work. So much better to have your pet pols give you market power!

    Lets hear it for activist government! Woohoo!

  2. John Roberts says:


    Thrilled that you read CNET ( and that you appreciate the story enough to link to it. However, I would ask that you not cut and paste so much from the story for use on your site, and perhaps you would edit this post down to a sentence or two of the verbatim report?

    Yes, I appreciate the possible irony of my comment given the context of the story. We love linking (we do it ourselves a fair bit), but our full-text stories are our business. explains our take on this.

    Thanks for reading.

    John Roberts
    CNET product development

  3. James Joyner says:


    Done. I’ve included instead an essentially identical summary of the
    case from the Washington Post, picking from one of the dozens of
    essentially identical summaries of the case linked at GoogleNews.



    James H. Joyner, Jr.
    Outside the Beltway