A story in today’s New York Times suggests that content companies, dismayed at having the broadcast-flag regulation roundly struck down by the D.C. Circuit last week, are ready once again to threaten to withhold digital-television content from broadcasting. The idea is that by threatening to do so, the content companies and broadcasters will force Congress to reinstate the regulation.

The story gets some facts wrong, and misses an important point. On the fact side, the story mischaracterizes the broadcast flag as “a piece of embedded software.” Sorry, but the flag is not “software” — it’s just a digital marker in the bitstream. One of the longstanding objections to the broadcast-flag regulation is that it requires a wide range of software and hardware to look for that digital marker, and this in turn requires re-architecting of a massive range of digital devices — maybe even the great majority of them.

This brings us to the important missed point. What none of the press coverage of last week’s decision touched on is the question of why, if it’s going to be so easy to get Congress to reinstate the regulation, wasn’t Congress asked to authorize FCC jurisdiction to implement the broadcast-flag scheme in the first place?

The answer, of course, is that Congress punted on the broadcast flag the first time around precisely because there were hard questions that had to be answered about the extent to which the FCC was going to be become a gatekeeper for all digital technology (since all, or almost all, digital technology might be made to interface with a digital-television receiver). Certain members of Congress urged the FCC to take the matter on without authorizing legislation, hoping the Commission would “thread the needle” and find a way to implement the broadcast-flag scheme painlessly, in a way that didn’t unduly interfere with consumer enjoyment of television and in a way that didn’t turn the FCC into the “Federal Computer Commission.”

It turns out that the broadcast-flag scheme is so fundamentally brain-damaged, conceptually, that there’s no way to implement it without the FCC’s reaching out to regulate all sorts of consumer devices and information technology. And this factor is what links the jurisdictional argument that sank the regulation to the substantive argument against the flag — the only way to make the regulation work at all is for the FCC to assume (or have Congress grant) broad jurisdiction that the Commission has never had before.

Of course, Congress may be tempted to give the FCC that power anyway — especially if legislators demonstrate the same misconceptions about the broadcast-flag scheme that the FCC showed when the Commission first took up the issue. We’ll need your help to educate Congress what the real scope of the FCC’s power would have to be in order for the broadcast-flag scheme to be implemented.

It would be ironic to see a Republican Administration and a Republican-dominated Congress turn the FCC into a massive tool of industrial policy, but that’s precisely what will happen if any version of the broadcast flag scheme is approved by Congress and sent back to the FCC. That will be one of the messages we try to convey to Congress in the upcoming legislative debate over whether to reinstitute the flag.

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