[drn-discuss] 6th May: broadcast flag struck down in the US

[Rufus Pollock]

On may 6th May the US Court of Appeals in the District of Columbia 
circuit struck down the broadcast flag~[1]. The case had been brought by 
Public Knowledge on behalf of itself, the American Library Association, 
Association of Research Libraries, American Association of Law 
Libraries, Medical Library Association, Special Libraries Association, 
Consumer Federation of America, Consumers Union and the Electronic 
Frontier Foundation. More information about the case may be found on the 
Public Knowledge page~[2].

While this decision should be welcomed the court did not base its 
reasoning on any fair use rights arguments. Rather it's vacation of the 
flag flowed from its view that the FCC did not have the authority to 
require consumer electronics manufacturers and others to use the flag -- 
  this authority reposes only in Congress. Thus the likely consequence 
of this decision is a large campaign in Congress from the MPAA and 
others for the reintroduction of the flag in legislation.

Regards,

Rufus

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[1] From the court's opinion:
http://pacer.cadc.uscourts.gov/docs/common/opinions/200505/04-1037b.pdf

III.  CONCLUSION The FCC argues that the Commission has "discretion"
to exercise "broad authority" over equipment used in connection with
radio and wire transmissions, "when the need arises, even if it has
not previously regulated in a particular area."  FCC Br. at  17.  This
is an extraordinary proposition.  "The [Commission's] position in this
case amounts to the bare suggestion that it possesses plenary
authority to act within a given area simply because Congress has
endowed it with some authority  to  act  in  that area. We
categorically reject that suggestion.  Agencies owe their capacity to
act to the delegation of authority" from Congress.  See Ry. Labor
Executives' Ass'n, 29 F.3d at 670.  The FCC, like other federal
agencies, "literally has no power to act . . . unless and until
Congress confers power upon it."  La. Pub. Serv. Comm'n v. FCC, 476
U.S. 355, 374 (1986).  In this case, all relevant materials concerning
the FCC's jurisdiction – including the words of the Communications Act
of  1934,  its  legislative  history,  subsequent  legislation,
relevant case law, and Commission practice – confirm that the FCC has
no authority to regulate consumer electronic devices that can be used
for receipt of wire or radio communication when those devices  are
not  engaged  in  the  process  of  radio  or  wire transmission.
Because  the  Commission  exceeded  the  scope  of  its delegated
authority, we grant the petition for review, and reverse and vacate
the Flag Order insofar as it requires demodulator products
manufactured on or after July 1, 2005 to recognize and give effect to
the broadcast flag.


[2] Public Knowledge page: http://www.publicknowledge.org/issues/bfcase