In a case that could determine whether educators and librarians will be able to record digital television broadcasts at home for use in their schools, a U.S. appeals panel on Feb. 22 challenged new federal rules requiring certain video devices to have technology to prevent the copying of digital TV programs or their distribution online.

U.S. Circuit Judge Harry T. Edwards told the Federal Communications Commission (FCC) it “crossed the line” by requiring the new anti-piracy technology in next-generation television devices. But another appeals judge on the panel questioned whether consumers could challenge the FCC’s rules in the courtroom.

The technology, known as the broadcast flag, will be required after July 1 for televisions equipped to receive new digital signals, many personal computers, and VCR-type recording devices. It would permit entertainment companies to designate, or flag, programs to prevent viewers from copying shows or distributing them over the internet.

Edwards, the former chief judge of the U.S. Circuit Court of Appeals for the District of Columbia, questioned the FCC’s authority to impose regulations affecting television broadcasts after such programs are beamed into households.

The FCC’s lawyer, Jacob M. Lewis, acknowledged the agency never had exercised such ancillary power, but he maintained this was permitted by Congress because lawmakers didn’t explicitly outlaw it.

“Ancillary does not mean you get to rule the world,” Edwards said. He said the FCC “crossed the line” beyond its authority approved by Congress. “You’ve gone too far,” he said. “Are washing machines next?”

Another circuit judge, David B. Sentelle, agreed. Sentelle acknowledged that entertainment companies could be reluctant to broadcast high-quality movies or TV shows that can’t be protected against copyright violators but said that wasn’t the FCC’s problem.

Digital TV is “going to have less content if it’s not protected, but Congress didn’t direct that you have to maximize content,” Sentelle said. “You can’t regulate washing machines. You can’t rule the world.”

Consumers’ groups, including library associations, have contested the FCC’s requirements, asserting that the rules will drive up prices of digital television devices and prevent consumers from recording programs in ways permitted under copyright laws.

The lawyer for the consumers’ groups, Pantelis Michalopoulos, argued that the broadcast flag could preclude libraries from copying television programs for educational or teaching purposes.

But Sentelle questioned whether the consumer and library groups can lawfully challenge the FCC decision, because the rules in question affect television viewers broadly. Appeals court procedures require groups to be able to show a particular injury before judges will consider a case; the FCC did not argue this point.

If the appeals panel decides that the consumer groups can’t contest the FCC requirements, it would dismiss the case regardless of any concerns about the anti-piracy technology. A decision by the court is not expected until later this year.


U.S. Circuit Court of Appeals for the District of Columbia

Federal Communications Commission