Broadcast flag at half-staff

Broadcast flag at half-staff

: An appellate court turns down the broadcast flag:

…the U.S. Court of Appeals for the D.C. Circuit said the Federal Communications Commission had overstepped its authority in trying to regulate how consumers can use their TV sets after they receive broadcasts.

Ernie Miller’s on top of the story and quotes the decision:

The FCC argues that the Commission has “discretionî to exercise ìbroad authorityî over equipment used in connection with radio and wire transmissions, ìwhen the need arises, even if it has not previously regulated in a particular area.î FCC Br. at 17. This is an extraordinary proposition. ìThe [Commissionís] 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 authorityî from Congress. See Ry. Labor Executivesí Assín, 29 F.3d at 670. The FCC, like other federal agencies, ìliterally has no power to act . . . unless and until Congress confers power upon it.î La. Pub. Serv. Commín v. FCC, 476 U.S. 355, 374 (1986). In this case, all relevant materials concerning the FCCís jurisdiction ñ including the words of the Communications Act of 1934, its legislative history, subsequent legislation, relevant case law, and Commission practice ñ 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.

Earlier, FCC Commissioner Adelstein said they’d need to start from scratch on protecting broadcast content.

: No, no, no: The far smarter thing to do would be to turn around and ask how the entertainment industry can take advantage of this opportunity: You support free broadcast TV with advertising. You should find the way to support free distributed TV with advertising. That will be a lot easier — and more lucrative — than playing legal wack-a-mole.

: Wikipedia background here. CNET’s story here.

: I was waiting to hear what Susan Crawford said about the case. She says it has bigger implications for regulation:

Although the DC Circuit didn’t have to reach this question, my view is that when the FCC starts making rules about a VoIP application that doesn’t terminate calls using a traditional telephone number, or an email application, or PCs, or anything else it hasn’t traditionally made rules about, it will be acting beyond the powers given it by Congress. This means we will have to have a sustained national conversation about the scope of the FCC’s authority over the internet before the Commission can act.

From what I’ve been hearing, it’s going to take several years for any rewrite of the Communications Act to happen. In the meantime, today’s opinion signals that the FCC should act with self-restraint.

: I would argue that the FCC has also overstepped its statutory authority in indecency, but that’s another subject.

5 responses to “Broadcast flag at half-staff”

  1. Skate Avatar

    This really is a great ruling. I’m surprised that nobody wants to comment on it.
    It seemed clear that the FCC overstepped its authority, but that didn’t mean that the courts would agree. The FCC made sweeping, secret rules in closed door meetings that would decide the fate of any and every technology capable of playing back a recorded TV program–all without authority from congress to do so.
    The FCC basically outlawed digital VCRs. While it was allegedly going to be possible to record a digital signal if it “obeyed” the yet to be publicly defined Broadcast Flag, such a VCR could be made useless by broadcasters who could simply flag their media as “unrecordable.”
    The shame of it is that congress let this happen in the first place. Now we get to see if they’ll let it happen a second time when industry lobbyists beat on their door. The close call with the INDUCE Act is not encouraging…

  2. EternalPessimist Avatar
    EternalPessimist

    Well, the courts seem to be under attack at the moment as “out-of-control” “the only unaccountable branch of government” with lifetime appointees unanswerable to the people…yadayadayada. The Terry Schiavo’s are just pawns in an attempt to bring the judiaciary under the penumbra of big everything, and ultimately, answerable to Big Brother and “compelling state interests”…to hell with the constitution. Sadly, it’s only a matter of time.
    Isn’t this going to the Supremes?

  3. Old Grouch Avatar
    Old Grouch

    As commenter “anomdebus” (at Ernest Miller’s site) says:

    “I would expect emergency legislation now from Congress to at least legislate the broadcast flag if not give the FCC the authority it thought it had.”

    Congress has repeatedly demonstrated that it has been thoroughly bought-and-paid-for by the “content cartel” (witness the DMCA), so I’m sure we’ll be hearing from the usual suspects. (The MPAA probably has a call in to Orrin Hatch already.) And on this issue, the Democrats are just as bad as the Republicans.

  4. UML Guy Avatar

    “You support free broadcast TV with advertising. You should find the way to support free distributed TV with advertising.”
    Except consumers are screaming just as loudly about too many ads. Witness recent blog rumbles — can’t recall a specific blog — about DVDs that force you to sit through previews before seeing the main film. Witness how Tivo customers want to zip past the ads. An ad-based revenue model only works if advertisers believe people are seeing the ads.
    Blipverts, anyone?

  5. Holycow Avatar
    Holycow

    It seems to be an open-shut case so I don’t expect the USSC to grant cert (take up the case). It seems clear that the FCC overstepped its authority so the only chance I see of the USSC hearing the case is if they want to downplay the severity of the appellate’s decision. I haven’t read the full text opinion but I doubt it is written with so much of a mocking tone as the big-news people are making it out to be (eg: “What’s next, dishwashers?”).
    In my opinion, the worst thing a court can do is to sound sarcastic in an opinon. With the reputation of the court as activist, however unjustified that reputation might be, judges need to watch their words. It’s Tom Delay’s job to talk about arms-bearing friends, not a judges. Unfortunately for us there is a good chance Justice Antonin Scalia will be the next Chief J., who happens to be the most inappropriately sarcastic justice on the bench (although not the most radically conservative – just an old-school republican federalist)
    Some critics have suggested they worry the FCC won’t have enough authority to act in any area they haven’t previously regulated and this shouldn’t be the case, they just can’t regulate outside the scope of the legislation given to them, which of course they did in this instance.