"Broadcast Flag" Rulemaking 

  1. Background on "Broadcast Flag"
  2. What are the library issues?
  3. FCC's "Broadcast Flag" Rulemaking (2003)
  4. The Lawsuit (2005)
  5. Court of Appeals decision
  6. Congress holds Broadcast Flag Hearings (2006)

Last Update: 8-August-2006 14:00

Several years ago, the Federal Communications Commission issued an order that would have required that all digital electronic devices, such as television sets and personal computers, include code (known as the "broadcast flag") that accompanies digital television (DTV) signals to prevent redistribution of the digital content over the Internet.  ALA was part of a successful suit against the FCC to stop the broadcast flag rule from going into effect in 2005.  Having passed through the executive and judicial branches of government, this issue entwining law and technology has moved to the legislative branch.

Background on issues surrounding the “broadcast flag” and the transition to digital TV

Both the Senate and House of Representatives have been working on legislation to complete the nation’s switch to digital television (“DTV”), probably with a deadline to cut off analog TV broadcasts by Jan. 1, 2009. There are several components to this effort to free up the radio frequencies that TV stations now use for analog broadcasts. One is that wireless and high-tech companies have told Congress that they can put the analog frequencies to better use through new wireless broadband services. Another element is that the government would auction off the returned analog spectrum, potentially gaining tens of billions of dollars, according to various estimates. Yet another piece is related to public safety, in that emergency first-responders need some of the spectrum to upgrade their communications systems.

There are still some obstacles, including that Congress must ensure that the roughly 21 million households that rely on over-the-air analog TV do not see their sets go dark after the transition date. Another problem is that the entertainment industry has been saying for some time that they do not want to broadcast for DTV without protection for their content that is equivalent to that enjoyed by cable and satellite companies. That demand for anti-piracy technology led the Federal Communications Commission in 2003 to issue an order requiring digital televisions, certain personal computers and VCRs manufactured after July 1, 2005, to have “broadcast flag” technology. Digital broadcasters would mark, or “flag,” a transmission by embedding a protective code, and then a broadcast flag reader on the receiving device would restrict the ability to re-transmit the content, including through the Internet.

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What are the library issues?

Libraries have pointed out that the broadcast flag will have the unintended result of seriously undermining the Technology, Education and Copyright Harmonization (TEACH) Act passed by the 107th Congress to facilitate distance education in the digital era. The TEACH Act sets forth conditions under which government bodies and accredited nonprofit educational institutions can use copyrighted works in distance education courses conducted over the Internet. The Act contains a variety of procedural safeguards to ensure that the interests of the copyright owners are not harmed.

Unfortunately, the broadcast flag threatens to frustrate distance education efforts.  Under the copyright law, an educator can include a clip of a television broadcast in distance education materials. For example, a course on criminal procedure could include a clip from Law and Order where the detectives conduct a search later claimed by the defendant to be unlawful. The broadcast flag, however, would prevent the educator from retransmitting that clip over the Internet. Contrary to the intent of Congress reflected in the TEACH Act, the broadcast flag will prevent the use of an entire category of works – high definition television programs – in distance education.

In addition, library associations and public interest groups were concerned that the flag would unfairly restrict legitimate copying and use of other broadcast content - such as news and public affairs programs - and sued the FCC, alleging among other things that the FCC lacked the statutory authority to issue the broadcast flag order. The U.S. Court of Appeals for the D.C. Circuit agreed in May 2005 and blocked the FCC’s order from going into effect. The entertainment industry quickly began trying to revive the broadcast flag in connection with the bills to set a deadline for transition to digital TV.

See Statement of Library, Education, and Scholarly Associations Concerning the Broadcast Video Flag, provided to Congress, July 2006. 

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The "Broadcast Flag" Rulemaking at the Federal Communications Commission (FCC)

In 2002 libraries and many other organizations participated in a filing to the Federal Communications Commission (FCC) on the impact of a proposed FCC rule mandating a "broadcast flag" copy protection for digital television. The FCC's rulemaking was intended to facilitate the transition to digital television (DTV) and to explore whether the FCC should mandate the use of a copy protection mechanism for digital broadcast television, and what impact such a regulation would have on consumers.

In November 2003, the FCC issued broadcast flag copyright protection rules that were to go into effect in 2005. The order requires that all digital electronic devices, such as television sets and personal computers, include code (known as the "broadcast flag") that accompanies DTV signals to prevent redistribution of the digital content over the Internet.

The FCC ruling had the potential for being another step toward giving content providers extensive control over what users can do with electronic content. If enacted, the rule also would have led to increased obsolescence in consumer electronics and ultimately leave the burden of increased cost on the shoulders of consumers.

To address these concerns, several public interest groups (including ALA) brought a lawsuit against the FCC to challenge the validity of the flag ruling. Though the suit was successful and the court refused to let the rule go through, the issue is now before Congress, as explained below.

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The lawsuit: American Library Association v. Federal Communications Commission (2005)

Libraries and other public interest and consumer organizations, led by the organization Public Knowledge, challenged the ruling through litigation in the U.S. Court of Appeals for the D.C. Circuit. The petition for review argued that the FCC acted both in excess of its statutory authority and contrary to the factual evidence in the record, and asked the Court to set aside the FCC's order.

Petition to the U.S. Court of Appeals

The petitioners (the challengers) were the American Library Association, Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Libraries Association, Public Knowledge, Consumer Federation of America, Consumers Union and Electronic Frontier Foundation.

The appeals court heard oral arguments in the case in February 2005. On March 15, the court issued an order directing the library organizations to file affidavits by March 29 to answer questions about the standing of the organizations to bring the suit. The court noted that though the FCC had not challenged the standing of our groups, the Motion Picture Association of America had done so, and the court needed additional information in order to resolve the issue.

On March 29, we filed affidavits from a number of individuals, including librarians at Vanderbilt University, North Carolina State University, University of California-Los Angeles, and American University, and an ALA member who teaches at the American University. In each instance they explained and illustrated how the broadcast flag, if it goes into effect in July 2005, would hamper their use of broadcast materials for teaching and scholarship.

On May 6, 2005, the Court of Appeals issued a unanimous decision striking down the FCC’s rule. The court relied in large part on a declaration filed by Peggy Hoon, Scholarly Communication Librarian at N.C. State University, who explained the adverse impact that the flag would have on distance education activities at NCSU. We expect that there will be attempts by the entertainment industry to promote the introduction of legislation to overturn the court’s decision and we will be meeting with congressional staff to educate them on the issues. Court of Appeals decision

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Senate holds Broadcast Flag Hearing, Introduces Bill (2006)

On Tuesday, Jan. 24, 2006, the U.S. Senate Commerce Committee held a hearing on the “broadcast flag.” Jonathan Band testified for the Library Copyright Alliance (ALA, AALL, ARL, MLA and SLA), explaining to the Committee how the broadcast flag would hamper distance education activities by libraries and educational institutions.  Attached to his written testimony were five affidavits from librarians that had been submitted to the D.C. Circuit Court of Appeals in the litigation over the broadcast flag. Go to the Senate Commerce Committee Web site to see the video: http://commerce.senate.gov/hearings/witnesslist.cfm?id=1704.


In subsequent meetings with Senate staff, libraries have urged that if there is to be a “flag,” Congress should ensure that any flag regime includes appropriate exceptions for lawful uses.   This could be done by prohibiting the flagging of certain kinds of content such as public domain material; news and public affairs programs; and programming designed for educational and informational needs.

S. 2686, the Communications Act of 2006, is a bill introduced in May by Sen. Ted Stevens (R-AK) on various aspects of telecommunications services.   The bill includes a “Digital Content Protection Act” to give the FCC authority to reissue its flag rule.  The current provision includes language about exceptions for educational and other uses along the lines of fair use, giving a clear signal that the library concerns were heard and heeded.  The larger bill was the subject of hearings and markup in June by the Senate Commerce, Science and Transportation Committee, for which libraries and higher education groups submitted a statement of continuing concerns.  It is unclear whether this or other provisions of the complex bill will move forward in the remaining days of this session of Congress. 


House Holds Flag Hearing (2006)


The House Energy and Commerce Committee’s Subcommittee on Telecommunications and the Internet held a hearing on June 27 entitled, “The Audio and Video Flags: Can Content Protection and Technological Innovation Coexist?”

http://energycommerce.house.gov/108/Hearings/06272006hearing1960/hearing.htm   There is no House version of the Stevens bill yet. 


Rep. Joe Barton (R-TX), chair of the House Energy and Commerce Committee has stated that there will be no broadcast flag bill coming out of his committee unless it is linked with H.R. 1201, the digital fair use bill.   Rep. Rick Boucher (D-VA) expressed his support for the importance of having distance education and news exceptions in any House bill.  The library and educational community did not testify at the House hearing, but we have submitted a statement for the record. 


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US Federal Regulation of copyright