The Broadcast Flag

The FCC's Broadcast Flag Rule

The so-called “Broadcast Flag” is a technology mandate supported by the motion picture industry that would embed an imperceptible flag in all digital television transmissions. In other words a code would be embedded in a TV broadcast. Devices would have to respond to this signal by limiting redistribution of the flagged content. The FCC promulgated a broadcast flag rule in 2003, at the behest of the MPAA. Public Knowledge challenged this order in federal court and on May 6, 2005, the D.C. Circuit Court of Appeals held that the FCC had no jurisdiction to issue the broadcast flag rules.

Attempts to Pass Broadcast Flag Legislation

Although the court overturned the broadcast flag rules, the underlying issue is far from dead. The content industry has continued its efforts to impose the broadcast flag, among other technology mandates. In 2006, Senator Gordon Smith of Oregon introduced the Digital Content Protection Act, which would not only ratify the FCC’s broadcast flag rules but would also extend similar restrictions to digital radio broadcasts i.e. mandate an audio flag. A similar bill was introduced in the House in 2005. Although neither of these bills have passed into law, attempts to introduce similar legislation are likely to continue.

Problems with the Broadcast Flag

The broadcast flag would have injected the government into technological design – a role the government is not well-suited for. The FCC would have been granted the ability to approve or deny the sale of television sets, computer software, DVRs, mobile phones, game consoles and other similar devices in the US, based on whether or not the product in question was broadcast flag compliant.

What’s more, the broadcast flag would have increased the cost paid by the consumer by making a number of consumer electronics devices obsolete. And since flag-compliant devices would not be compatible with non-flag-compliant devices, lawful uses would be prevented. For example, a consumer would not be able to record an over-the-air local news broadcast on a broadcast-flag compliant DVR in her living room and play it back on a non-compliant player in her bedroom. A university would not have been able to use digital TV video clips for educational purposes. A student would not be able to email herself a copy of a project with video content because no secure system exists for email transmissions.