[opendtv] FCC Overstepped Authority on Digital TV

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FCC Overstepped Authority on Digital TV
Tue Feb 22, 2005 03:07 PM ET

By Peter Kaplan

WASHINGTON (Reuters) - A U.S. appeals court on Tuesday said that 
regulators had overstepped their authority by imposing a rule designed 
to limit the copying of digital television programs.

"You crossed the line," Judge Harry Edwards told a lawyer for the 
Federal Communications Commission during arguments before a three-judge 
panel of the U.S. Court of Appeals for the D.C. Circuit.

"Selling televisions is not what the FCC is in the business of," Edwards 
said, siding with critics who charge the rule dictates how computers and 
other devices should work.

But it was unclear whether the judges would strike down the FCC's 2003 
rule, since doubts were also raised about whether the American Library 
Association and other opponents had legal standing to challenge the rule 
in court.

After hearing arguments, the court usually takes several months to issue 
a ruling.

The FCC rule aims to limit people from sending copies of digital 
television programs over the Internet. The FCC has said copyright 
protections are needed to help speed the adoption of digital television.

Under the FCC rule, programmers can attach a code, or flag, to digital 
broadcasts that would, in most cases, bar consumers from sending 
unauthorized copies of popular shows over the Web.

The rule requires manufacturers of television sets that receive digital 
over-the-air broadcast signals to produce sets that can read the digital 
code by July 1 of this year.

The rule has been criticized by some consumer groups, who say that it 
could raise prices to consumers and that it sets a bad precedent by 
allowing broadcasters to dictate how computers and other devices should 
be built.

Edwards and one of the other two judges, David Sentelle, agreed with the 
critics and told FCC lawyer Jacob Lewis that the law does not give the 
agency specific authority to dictate how electronic devices must be made.

"It's never been done before," Sentelle said, agreeing with Edwards that 
the rule could set a precedent for a wide range of other new FCC 
regulations.

But Sentelle also said he had serious doubts about whether the library 
association and other critics had standing to sue.

Courts have long held that parties have standing only when they can show 
that an agency ruling will cause them a unique, "particularized" harm, 
Sentelle said.

"The harm to us is the harm to consumers," responded Pantelis 
Michalopoulos, an attorney for the petitioners in the case. "Our members 
are consumers."

Sentelle was unconvinced, saying it's not enough to argue that the rule 
will raise the price of Internet content to consumers in general.

Neither Edwards nor the other judge on the panel, Judge Judith Rogers, 
indicated whether they agreed with Sentelle on the issue of legal standing.

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