Breaking News! Court Strikes Down FCC’s Broadcast Flag!   - 1,292 Views, 4 Comments

However, according to the decision this morning by the United States Court of Appeals in the District of Columbia, the FCC has far overstepped its bounds in trying to exercise authority over electronic devices, their manufacture, and what consumers may do with them.

Indeed, the Court observed that “The FCC argues that the Commission has “discretionâ€? to exercise “broad authorityâ€? 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’”.

But the Court was clearly not impressed with the FCC’s argument. They start the decision by lambasting the FCC, observing that the primary question in the case is whether the FCC has the authority “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.”

Ouch!

The Court goes on to conclude that the FCC’s assertion that it has the authority to mandate the broadcast flag is “an extraordinary proposition”, and quotes old and established case law when observing that “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.”

“In this case,” concludes the Court, “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.”

So put that in your pipe and smoke it, FCC - this is one flag that many Americans will be happy to burn.