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.

As the FCC said in the November 2003 order,

"[E]ven though this may be the first time the Commission exercises its ancillary jurisdiction over equipment manufacturers in this manner, the nation now stands at a juncture where such exercise of authority is necessary." In other words, the FCC is willing to do whatever it takes to make the DTV transition happens; it believes the flag is necessary to this transition, and not having explicit jurisdiction to act isn't enough of a reason not to act.

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.")

The thing is, this rule doesn't merely affect TV receiving equipment. It affects everything that RECEIVES digital files from TV receiving equipment as well -- every device inside any home network. It affects the open-platform PC. It's a sweeping rule. And now FCC's jurisdiction to enact this rule is being argued in sweeping terms.

Why should we care about all of this? We should care because if the FCC has the power to act on anything that has something to do with communication, we have only the FCC's self-restraint to rely on when it comes to all internet communications. We should care because we want open platforms and open communications to continue. We should care because the future of the internet is at stake -- the FCC will use its "ancillary jurisdiction" to impose "social policies" on any services that use the internet protocol, and will point to its broadcast flag action as support for its jurisdictional claims.

I'm wondering if the White House knows what is going on at the FCC.


http://scrawford.blogware.com/blog