A federal appeals court has issued a stern rebuke to the FCC, and has struck down the FCC regulations that would have made many digital TV receivers
and tuner cards illegal. Specifically, since the broadcast flag would only be implemented
after the broadcast transmission was completed, the
court ruled that the FCC exceeded their authority in issuing the requirements.
pacer.cadc.uscourts.gov
In adopting the broadcast flag rules, the FCC cited no specific statutory provision giving the agency authority to regulate consumers’
use of television receiver apparatus after the completion of a broadcast transmission. Rather, the commission relied exclusively on its ancillary
jurisdiction under Title I of the Communications Act of 1934.
( . . . . . Edited, see the link)
Therefore, we hold that the Commission acted outside the scope of its delegated authority when it adopted the disputed broadcast flag regulations.
( . . . . . Edited, see the link)
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.
Please visit the link provided for the complete story.
These requirements were proposed and pushed through the FCC by the MPAA and would have regulated the capability of electronic hardware to copy and
play broadcast content.
This is good news for anyone who owns a DVR, or any other digital recording device and would like to control what they record. This is bad news for
the recording industry that sees unfettered copying of digital content as an erosion of potential profits on copyrighted product.
The decision is rather long but it clearly indicates the Court's distain for the FCC justification for the rules.
And the agency’s strained and implausible interpretations of the definitional provisions of the Communications Act of 1934 do not lend
credence to its position. As the Supreme Court has reminded us, Congress “does not . . . hide elephants in mouseholes.” Whitman v. Am. Trucking
Ass’n, 531 U.S. 457, 468 (2001).
In addition, in the oral arguments, the judges clearly found the FCC position weak.
"You're out there in the whole world, regulating. Are washing machines next?" asked Judge Harry Edwards. Quipped Judge David Sentelle: "You
can't regulate washing machines. You can't rule the world."
Edit: For those of you who have commented that you do not like the source link. I would like to point out that that is the actual document published
by the court in describing the justification for their decision. You don't get any more original than that. This article is my interpetation of
that source information. Not my interpetation of someone elses interpetation. If you still want further information, please see the related news
links or just google for it, since it is a fairly important story. Thank you.
Related News Links:
news.com.com
news.com.com
www.wired.com
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