Last night, we filed our reply brief in our case challenging the FCC’s “broadcast flag” decision. The broadcast flag scheme, for the uninitiated, is a copy protection mechanism that allows broadcasters to limit transmission and redistribution of digital TV content to devices “authorized” by the FCC. PK is organizing and financing the litigation on behalf of ourselves and seven other library, consumer and civil liberties organizations. The wonderful firm of Steptoe and Johnson are our lawyers in this matter, and Mike and I serve as co-counsel. We have three main arguments: 1) that the FCC lacks the power under the Communications Act to force TV and computer manufacturers to build their machines to obey the flag; 2) that the FCC lacks the power to make copyright law, which it is doing here by limiting certain fair uses of digital TV content and 3) the FCC was “arbitrary and capricious” in adopting the flag scheme, since there was no evidence that anyone was pirating DTV content, that such activity would be possible in the future, or that the flag would be able to stop illegal activity.

The importance of this case goes far beyond its effects on DTV. This case will determine the scope of the FCC’s power in regulating all manner of technology. At the same time the FCC is claiming to have broad powers over every foreign and domestic transmission, and every technology that receives those transmissions, it is deciding the limits of its powers over IP-enabled services like VOIP. People who think the FCC should have a limited role in regulating the applications and content layers of the Internet should read the FCC’s brief filed in the case and be very, very scared.

What I find the most puzzling is that perhaps the most deregulatory-minded FCC Chairman since Mark Fowler voted for the broadcast flag scheme. But putting his agency in charge of sifting through thousands of pages of technical specifications to determine what technologies should be permitted to carry DTV, he has adopted perhaps the most regulatory scheme to hit the agency in decades.

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