ALA v. FCC (Broadcast Flag)

[David Farber <dave () farber net>]

Begin forwarded message:

From: Dewayne Hendricks <dewayne () warpspeed com>
Date: May 6, 2005 12:00:22 PM EDT
To: Dewayne-Net Technology List <dewayne-net () warpspeed com>
Subject: [Dewayne-Net] ALA v. FCC (Broadcast Flag)
Reply-To: dewayne () warpspeed com


[Note:  I'm cross posting this from the Cybertelecom list.  My last  
post with the URL to the WSJ, turned out to only work for paid  
subscribers (of which I am one).  My apologies for that.  This short  
excerpt from the Court's decision and the pointer to the full  
decision should suffice instead.  DLH]


> From: Robert Cannon <rcannon100 () YAHOO COM>
> Date: May 6, 2005 8:37:38 AM PDT
> To: CYBERTELECOM-L () LISTSERV AOL COM
> Subject: ALA v. FCC (Broadcast Flag)
> Reply-To: Telecom Regulation & the Internet <CYBERTELECOM- 
> L () LISTSERV AOL COM>
>
> <http://pacer.cadc.uscourts.gov/docs/common/opinions/ 
> 200505/04-1037b.pdf>
>
> It is axiomatic that administrative agencies may issue
> regulations only pursuant to authority delegated to
> them by Congress. The principal question presented by
> this case is whether Congress delegated authority
> to the Federal Communications Commission (“Commission”
> or “FCC”) in the Communications Act of 1934, 47 U.S.C.
> § 151 et seq. (2000) (“Communications Act” or “Act”),
> to regulate apparatus that can receive television
> broadcasts when those apparatus are not engaged in the
> process of receiving a broadcast transmission. In the
> seven decades of its existence, the FCC has never
> before asserted such sweeping authority. Indeed, in
> the
> past, the FCC has informed Congress that it lacked any
> such authority. In our view, nothing has changed to
> give the FCC the authority that it now claims.
>
> .. . . . .
>
> 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.
>
> So ordered.
>
> =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
> Cybertelecom :: An educational non profit dedicated to raising  
> awareness of and participation in Federal Internet Policy.
>   www.cybertelecom.org     cannon () cybertelecom org


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