Reconciling these interests has led to the development of a broadcast video flag to combat unauthorized redistribution of content broadcast through digital television signals. In November 2003, the FCC published a Report and Order that required all digital devices capable of receiving digital broadcast over the air, and sold after July 1, 2005, to incorporate a standard content-protection technology that would recognize the broadcast video flag and limit redistribution when the flag is recognized. Legal Challenges to the Broadcast Video Flag

In October of 2004, the American Library Association (ALA), Association of Research Libraries, American Association of Law Libraries (AALL), Medical Libraries Association, and others petitioned the U.S. Court of Appeals for the District of Columbia Circuit to review the FCC's Report and Order. On May 6, 2005, the United States Court of Appeals for the District of Columbia Circuit granted the ALA's petition for review and reversed and vacated the Commission's order requiring DTV reception equipment to be manufactured with the capability to prevent unauthorized redistributions of digital content. In American Library Association v. Federal Communications Commission , the court of appeals determined that the FCC lacked the authority "to regulate apparatus that can receive television broadcasts when those apparatus are not engaged in the process of receiving a broadcast transmission." Broadcast Video Flag Legislation Introduced in the 109th Congress

In response to the American Library Association decision, two bills were introduced in the 109 th Congress that would have expressly granted statutory authority to the FCC under the Communications Act of 1934 to implement the FCC's Report and Order In the Matter of Digital Broadcast Content Protection . These legislative proposals represent approaches that may be taken in the 110 th Congress for authorizing a broadcast video flag system. The Digital Content Protection Act of 2006 was introduced by Senator Ted Stevens in the 109 th Congress as part of two bills, S. 2686 and H.R. 5252 (as reported in the Senate). Hearings on the broadcast flag held by the 109 th Congress revealed that educators and librarians who use digital materials in education are concerned that a broadcast video flag regime could frustrate the utilization of digital television in distance education.
In November 2003, the Federal Communications Commission (FCC) adopted a rule that required all digital devices capable of receiving digital television (DTV) broadcasts over the air, and sold after July 1, 2005, to incorporate technology that would recognize and abide by the broadcast video flag, a content-protection signal that broadcasters may choose to embed into a digital broadcast transmission as a way to prevent unauthorized redistribution of DTV content. However, in October 2004, the American Library Association and eight organizations representing a large number of libraries and consumers filed a lawsuit that challenged the power of the FCC to promulgate such a rule. In May 2005, the United States Court of Appeals for the District of Columbia Circuit ruled in American Library Association v. Federal Communications Commission that the FCC had exceeded the scope of its delegated authority in imposing the broadcast flag regime, and the court thus reversed and vacated the FCC's broadcast flag order.
Parties holding a copyright interest in content transmitted through DTV broadcasts, in particular broadcasters and television program creators, remain concerned about the unauthorized distribution and reproduction of copyrighted DTV content and thus continue to advocate the adoption of a broadcast video flag. However, several consumer, educational, and technology groups raise objections to the broadcast flag because, in their view, it would place technological, financial, and regulatory burdens that may stifle innovation, limit the consumer's ability to use DTV broadcasts in accordance with the Copyright Act's "fair use" principles, and possibly frustrate the use of digital television content by educators and librarians in distance education programs.
This report provides a brief explanation of the broadcast video flag and its relationship to digital television and summarizes the American Library Association judicial opinion. The report also examines a legislative proposal introduced in the 109 th Congress, the Digital Content Protection Act of 2006, which appeared as portions of two bills, S. 2686 and H.R. 5252 (as reported in the Senate), that would have expressly granted statutory authority to the FCC under the Communications Act of 1934 to promulgate regulations implementing a broadcast video flag system. Although not enacted, these bills represent approaches to authorizing the broadcast video flag system that may be of interest to the 110 th Congress.