In a surprise move today, a Federal appeals court struck down the FCC’s proposed “broadcast flag“. The broadcast flag is an anti-copying scheme for digital broadcasts which the FCC was trying to force on all consumers, and into all devices capable of receiving and recording a digital broadcast. The broadcast flag was to become required in all such devices effective on July 1st of this year.
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!
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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.
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Just means that the next target will be the politicians, to get them to legislate the broadcast flag, or to expand the FCC authority so they can mandate it. This is only round one.
If I was a verminous lawyer, my next move would be to get a ruling on what constitutes “transmission by wire”. The signal moves, via wire, within the unit.
Personally, I hope this evil bit of legislation stays dead.
Let’s not lose our focus or vigilence here – this is surely not the last attempt by media conglomerates to exercise undue control over consumer’s rights.
“In a surprise move today?” Friday’s ruling was no real surprise to me…
I love this though…Judge Harry T. Edwards to the FCC’s lawyer “Are washing machines next?”