I'm unhappy with what the FCC has done, because it seems to be boundless, unprincipled, and based on irrational assumptions.

Boundless: It covers all content, whether protected by copyright or not. It covers news; it covers public domain material; it covers anything broadcast (including data, including who knows what).

It covers all devices that include a demodulator. This will include PCs, software demodulators, and any other consumer device.

Unprincipled: The FCC doesn't have jurisdiction to enter this order. Here are their arguments:

1. we have ancillary authority over equipment manufacturers because
-- title I mentions "radio communication," and that term is defined broadly to include "facilities, apparatus, and services... incidental to such transmission"
-- but this is about reception, not transmission
-- exercising jurisdiction is reasonably ancillary to our performance of our responsibilities to shepherd the country into the digital age
-- but there's no evidence that transition being held back -- indeed, why are you in such a rush re legacy devices if the transition isn't happening? and no one is holding content back
-- but there's no evidence that we'll see different or more content being broadcast as a result of this rule
-- and why do we favor broadcast over innovation?

2. we don't need an explicit statutory grant because
-- when Congress worried about our broadening jurisdiction they said that in the context of an explicit statute about manufacturers -- and here there isn't one
-- but the Congressional concern is still relevant
-- don't stick us with your statutory interpretation canons about Congress knowing how to grant explicit statutory authority -- that would limit our flexibility
-- but there's a good reason to limit your flexibility here
3. we must act now because
-- the nation now stands at a juncture where such exercise of authority is necessary
-- a circular argument for jurisdiction
-- why protect broadcast above innovation
-- these are narrowly tailored rules
-- this is another circular argument for jurisdiction
-- not in terms of their impact on the interoperability and functionality of machines

This will make a great jurisdiction lawsuit. Was lack of jurisdiction not enough of a reason not to do this?

More about principle: The FCC has established an interim procedure for Table A admission. Maybe I'm just cynical, but it seems obvious that the 5C suite of technologies will be the group that gets in first. The lock-in effects of that suite (and the overreaching license provisions that limit use of any non 5C suite machines) will be enormous.

More about principle: FCC purports to care about privacy, but the rule attached to the order requires that content if copied be bound to a particular device. A unique device. A device with a unique identifier. These sorts of issues usually prompt privacy concerns. Let's not even start on the "personal network" the FCC hopes to define.

And just one more note on principle (there are so many to be made here): FCC says several times that copy protection isn't their goal and that consumers will be free to make copies. In fact, they even changed the name of the proceeding from "copy protection" to "content protection" just to make everyone feel better. But this is so misleading. Once a piece of content is received by a flag-compliant device, it cannot be transmitted to or copied onto or displayed on a non flag-compliant device. Which means: copying is limited, and will require substantial upgrading of devices.

how can FCC possibly believe that they're not making rules that are copyright related?

Irrational assumptions

Yes, digital works can be copied. But that doesn't mean that the wishes of content owners should prevail over device manufacturers or the comments of thousands of people who wrote in to complain. Why does the FCC believe it has a mission to "forestall the development of a problem in the future similar to that currently being experienced by the music industry"? Why assume that the flag will have any such effect, other than to control machines and innovation? In fact, why assume that the flag is anything other than a staging device for later moves to close the analog hole (that'll be some proceeding) and shut down peer to peer networks? The FCC is being shamelessly used by the content industry. It's a bad day for regulators all around.

Looks like the FCC has finessed the important innovation-related issues by setting up an "interim" requirement to use 5C (which will have all the lock-in and interoperability problems predicted) while promising to fix the problems with the Table A process later. A very negative precedent for the future of machines. More later.