Broadcast Flag - Current Status

Current Status

In American Library Association v. FCC, 406 F.3d 689 (D.C. Cir. 2005), the United States Court of Appeals for the D.C. Circuit ruled that the FCC had exceeded its authority in creating this rule. The court stated that the Commission could not prohibit the manufacture of computer or video hardware without copy protection technology because the FCC only has authority to regulate transmissions, not devices that receive communications. While it is always possible that the Supreme Court could overturn this holding, the more likely reemergence of the broadcast flag is in legislation of the United States Congress granting such authority to the FCC.

On May 1, 2006, Sen. Ted Stevens inserted a version of the Broadcast Flag into the Communications, Consumer’s Choice, and Broadband Deployment Act of 2006. On June 22, 2006 Sen. John E. Sununu offered an amendment to strike the broadcast and radio flag, but this failed and the broadcast-flag amendment was approved by the Commerce committee. Nonetheless, the overall bill was never passed, and thus died upon adjournment of the 109th Congress in December 2006.

On May 18, 2008, News.com reported that Microsoft had confirmed that current versions of Windows Media Center shipping with the Windows family of operating systems adhered to the use of the broadcast flag, following reports of users being blocked from taping specific airings of NBC programs, mainly American Gladiators and Medium. A Microsoft spokesperson said that Windows Media Center adheres to the "rules set forth by the FCC", even though no legislation actually requires following such rules.

On August 22, 2011, the FCC officially eliminated the broadcast flag regulations.