Jeffrey Krauss 
Let's review. The FCC adopted the Broadcast Flag rules because broadcasters said there was a need to control the redistribution of broadcast programming over the Internet. This wasn't about copy protection, because TV programs can legally be copied to your heart's content. It was about controlling where a program (or portion of a program) can be viewed. It was about viewing a New York City news program in Miami. Or adding part of a TV soap opera to your blog. Or adding short clips of Univision's Spanish language TV programming to a distance-learning course in the Spanish language.
In order to control this sort of redistribution, two things were needed. First, the ATSC, the standards body that writes the standards for digital television, had to define a standard way to carry the Flag within the digital TV signal format. It did this, setting aside one bit in the bitstream. If the bit is set equal to 1, that means that redistribution control is asserted. If the bit is 0, there is no redistribution control. Presumably broadcasters would set the bit at the time they broadcast the program, but there is nothing prohibiting a Hollywood studio from adding it to the bitstream when they distribute their movies to the broadcasters.
The second necessary requirement was that TV sets (and tuner cards in computers) would have to respect the Flag setting. Any device that received digital TV signals and had a digital output port would have to check the bitstream to see if the Flag bit was set. If so, the device would have to refuse to allow the bitstream to be redistributed. The requirement would apply to any device with a digital TV tuner and demodulator. Limited redistribution would be allowed if there was a protection technology (meaning some form of encryption) embedded in the output device, in order that a TV receiver could deliver the bitstream to a digital video recorder for later playback. The FCC established a cumbersome program for approving protection technologies, which was a separate area of controversy.
The District of Columbia Federal Court of Appeals said the FCC overstepped its jurisdiction. The FCC has full jurisdiction over broadcast television signals. But it has only limited jurisdiction over TV receivers. It can regulate the receivers' RF emissions to prevent them from causing radio interference, just like personal computers and any other electronic device. It can require them to tune and demodulate analog and TV broadcasts, because of authority granted in the 1962 All Channel Receiver Act. It can require them to decode and display closed captions, because of authority granted in the 1990 Television Decoder Circuitry Act. It can require them to be equipped with V-chip program blocking capability, because of authority granted in the 1996 Telecommunications Act. It can regulate whether a TV set can be labeled "cable-ready" because of Sections 624A and 629 of the Communications Act, the Navigation Device sections.
But the Court said there was nothing in the Communications Act that gives the FCC authority to impose other requirements on TV receivers, including in particular the requirement to respect the setting of the Broadcast Flag.
So what does this mean for the EAS? The FCC has authority over broadcasters' transmission of Emergency Alert messages, because it has broad authority over virtually everything a broadcaster transmits. But the FCC has no authority to require TV receivers to display Emergency Alert messages. When a broadcaster includes the message as a video overlay on the TV program, the issue doesn't arise because the TV set displays the full video picture that includes the Emergency Alert message.
But suppose the broadcast industry decides to follow the cable industry's approach. The cable industry adopted a standard, SCTE 18, that defines how Emergency Alert messages can be carried in digital cable bitstreams. The set-top box or cable-ready receiver decodes the coded bits and either displays the message or tunes to another channel that displays a message. There was a voluntary agreement between the cable and consumer electronics industries to support this approach, and then the FCC made it mandatory for TV sets labeled as "cable-ready." The FCC has the authority to do that because of the Navigation Device provisions.
The FCC has a proceeding underway to modernize the EAS. The Association of Public Television Stations proposed a data broadcasting approach like the cable industry adopted to deliver Emergency Alert messages to the public. The NAB supported a Common Alerting Protocol to be carried within digital TV bitstreams. Good idea! But too bad. Digital TV sets don't have to decode those messages. And the FCC has no authority to require digital TVs to comply. That's the fallout from the Court's decision.
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