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.
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.
: 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.