Two of the three judges on the District of Columbia Circuit panel said the FCC never received permission from Congress to, which is intended to encourage the purchase of digital TV receivers that of over-the-air broadcasts of programming such as movies and sports.
"You're out there in the whole world, regulating. Are washing machines next?" asked Judge Harry Edwards. Quipped Judge David Sentelle: "You can't regulate washing machines. You can't rule the world."
The groups challenging the FCC's broadcast flag regulation include the American Library Association, the Association of Research Libraries, the Medical Library Association, Public Knowledge and the Electronic Frontier Foundation. They argue that the FCC exceeded its authority, that Congress should be responsible for making copyright law, and that librarians' ability to make "fair use" of digital broadcasts will be unreasonably curtailed.
But one of the judges, Sentelle, suggested that the library and other nonprofit groups challenging the FCC's rule would not suffer the kind of particular harm necessary to allow the case to proceed.
"You have to have a harm that distinguishes you from the public at large," Sentelle said during oral arguments. "If there is not a particularized harm, you do not have standing...There may be someone from the industry who can come forward." Edwards also said he was concerned about the groups' "standing," referring to the judicially recognized right to sue. Special rules exist for organizations suing federal agencies.
From the perspective of the entertainment industry, the broadcast flag is needed to encourage over-the-air distribution of valuable content. Without the FCC's action, the Motion Picture Association of America has argued, the threat of Internet piracy would imperil the future of digital TV.