Friday, May 6, 2005 - The Progress & Freedom Foundation Blog

What's Left of Title I After the Broadcast Flag Case?

The DC Circuit's vacation of the broadcast flag rule leaves the FCC's supposed Title I authority in tatters. The broadcast flag, a rule concocted as part of the compromise on the digital television transition, required broadcasters to "flag" digital content s as to make it harder to pirate.

Personally, I had no great enthusiasm for the flag, as I thought it inadvisable to found a new strain of intellectual property law in the FCC, an agency that has enough trouble with its current mandate. That said, the flag could be tolerated when seen in the context of the DTV transition as a whole, where its imposition was indispensible to the content industry signing-off. This "end justifies the means" thinking is not to be encouraged very often, but the value of completing the DTV transition is enormous, as I've spoken about here.

Title I always seemed a thin reed on which to premise a de facto copyright protection law, and now the DC Circuit has confirmed that it is not the empty vessel into which all sorts of broadband aspirational goals can be poured. Thus, this case has enormous implications for those who would want to regulate

broadband (or rather free broadband) using Title I authority. As Adam Peters has pointed out, the authority to regulate port blocking of VoIP over cable is premised on supposed (and now rather ephermeral) Title I authority. [The Madison River port-blocking case was done under Title II, as it was a DSL provider.] Judge Edwards has said no that, and perhaps to good purpose.

Ancillary jurisdiction, for practical purposes, is now a very small source of authority for the FCC. Thus, the questions shift to Congress:

1. Do you want to authorize the FCC to impose the broadcast flag?

2. How do you want the FCC to regulate broadband now that the Title I avenue is foreclosed?

As to the second question, I don't mean to imply this case completely forecloses Title I authority. In reading it through once, Judge Edwards has written a rather tight opinion premised on the ancillary jurisdiction authority to regulate content. That said, once cannot help but look for broader implications in his reasoning that do not portend well for broadband authority under Title I.

So short-term this case puts a crimp in the DTV transition (bad) and makes any regulatory action premised on Title I shaky (maybe good given the indeterminacy of the provision). Congress and the FCC now have some difficult decisions back squarely in their respective laps.

Among other things, this is a great opportunity for Chairman Martin to set forth his legal vision for the DTV transition and broadband regulation generally. The preferred Title I paths of Chairman Powell look closed, or at the very least quite narrow. Therefore, over to you, Mr. Chairman...and I don't envy you at all for having to figure a way out of this.

posted by Ray Gifford @ 4:15 PM | Broadband , Cable , Digital TV , IP , The FCC