The D.C. Circuit has asked for briefing and evidence on our standing to fight the broadcast flag. That’s good news, because the court needs to get through the standing question — whether we can demonstrate concrete injury from the flag — before it can rule on the merits of the case — whether the FCC had authority to mandate a flag at all. In oral argument, the Court expressed skepticism about the FCC’s authority, likening a tuner mandate to regulation of dishwashers.
Specifically, the Court asked in part
Are there any injuries, (not including the increased cost of consumer electronics), … that identifiable members of petitioners
organizations will face as a result of the broadcast flag regime?
If so, petitioners must identify the relevant member or members
and describe the precise nature of the injury that will be caused
by the FCCs adoption of the broadcast flag regime?
. We think this is a question we can answer with reference to MythTV builders, hardware manufacturers, and home theater enthusiasts, as well as educators and archivists. Then, the court can get to the meat of ruling that the flag was an unjustified extension of FCC authority.