Don’t like what you hear about broadcast flag? Neither does various consumers advocacy organizations, including the American Library Association, The Electronic Frontier Foundation, and Public Knowledge. At press time in April, these groups were fighting the FCC ruling in the Washington, D.C circuit court appeals.

Until the court renders a decision, expect flag plans to go forward as scheduled and flag-aware products to arrive in stores in July.

Disagreement over what the FCC can mandate lies at the heart of the case.

“Our contention is, the FCC can regulate broadcasts, but they can’t regulate consumer electronics without express consent from Congress,” says Art Brodsky, communications director for Public Knowledge. The V-chip, for example, which lets consumers block some TV shows, required U.S congressional approval, he says.

And because of the FCC plan’s legacy clause, the piracy loophole won’t really be closed anyway, says Wendy Seltzer, an EFF attorney who is working on the case. “Anyone determined to pirate HDTV content already has the equipment.”

The EFF further argues that the open-source community could be shut out of future digital TV-related products due to the FCC plan’s Demodulator Robustness Requirements”. The plan states that devices must be”robust” in preventing user modifications that allow access to the full digital TV stream, Seltzer says. This stipulation raises questions of how and whether open-source drivers- which are modifiable to some extent- could be used with flag aware products, she says.

What happens if the advocacy groups win and the FCC plan is killed or stalled? The networks wouldn’t broadcasts the flag code. And the updated devices would simply have an unneeded, un used capability in the demodulator chip.