3service to DTV, the Commission issued a notice of proposedrulemaking to inquire,
inter alia
, whether rules were needed toprevent the unauthorized copying and redistribution of digitaltelevision programming.
See
Digital Broadcast CopyProtection
, 17 F.C.C.R. 16,027, 16,028 (2002) (“NPRM”).Thousands of comments were filed in response to the agency’sNPRM. Owners of digital content and television broadcastersurged the Commission to require DTV reception equipment tobe manufactured with the capability to prevent unauthorizedredistributions of digital content. Numerous other commentersvoiced strong objections to any such regulations, contendingthat the FCC had no authority to control how broadcast contentis used after it has been received. In November 2003, theCommission adopted “broadcast flag” regulations, requiring thatdigital television receivers and other devices capable of receiving digital television broadcast signals, manufactured onor after July 1, 2005, include technology allowing them torecognize the broadcast flag.
See Digital Broadcast Content Protection
, 18 F.C.C.R. 23,550 (2003) (codified at 47 C.F.R.pts. 73, 76). The broadcast flag is a digital code embedded in aDTV broadcasting stream, which prevents digital televisionreception equipment from redistributing broadcast content. Thebroadcast flag affects receiver devices only
after
a broadcasttransmission is complete. The American Library Association,
et al.
(“American Library” or “petitioners”), nine organizationsrepresenting a large number of libraries and consumers,
filed thepresent petition for review challenging these rules.In adopting the broadcast flag rules, the FCC cited nospecific statutory provision giving the agency authority toregulate consumers’ use of television receiver apparatus after thecompletion of a broadcast transmission. Rather, theCommission relied exclusively on its ancillary jurisdiction underTitle I of the Communications Act of 1934.
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