Judges Scold FCC Over Broadcast Flag

Two of the three federal appeals court judges from the District of Columbia scolded the Federal Communications Commission Tuesday over what they saw as an overstep of the agency's authority given by Congress. The reprimand came in response to the FCC's ruling on the "broadcast flag."

The broadcast flag came about in November 2003 at the request of the entertainment industry to block copying. The ruling required that any device sold in the US that could receive digital television after July 2005 must be able to detect the flag.

The feature was intended to curb the illegal distribution of programming over the Internet, but Congress did not specifically grant the FCC power to implement it.

"Ancillary does not mean you get to rule the world," said Judge Harry Edwards. "You've gone too far."

Several groups came forward to challenge the ruling; however, most of were involved with libraries. They claimed that the new law would affect their ability to use digital programming under "fair use" laws. Critics also argued that the FCC had no authority to make the ruling without Congress' approval.

The three-judge panel seemed to agree with that assertion. "You're out there in the whole world, regulating. Are washing machines next?" asked Edwards. But Judge David B. Sentelle questioned whether library groups could legally challenge the FCC order, as they are not representative of television viewers as a whole.

The Motion Picture Association of America argues that the law is necessary, and without it, the future of digital TV as a whole may be in jeopardy.