Friday, May 06, 2005

FCC's Broadcast Flag Vacated by US Court

The US Court of Appeals of the District of Columbia has vacated the Federal Communications Commission's broadcast flag today! It noted that petitioners had standing in their complaint and that the FCC "exceeded the scope of its delegated authority" with the broadcast flag. It has send the case back for review. The ruling can be found here [PDF]. From the ruling:
There is no statutory foundation for the broadcast flag rules, and consequently the rules are ancillary to nothing. Therefore, we hold that the Commission acted outside the scope of its delegated authority when it adopted the disputed broadcast flag regulations. [p. 4]
We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver apparatus. 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 sum, we hold that, at most, the Commission only has general authority under Title I to regulate apparatus used for the receipt of radio or wire communication while those apparatus are engaged in communication. [p. 26]
This is an important ruling, especially for the future of technological innovation. Background posts:
CoCo: Broadcast Flag: Legal Standing Explained
CoCo: Broadcast Flag: Court Asks for Facts on Standing
CoCo: Hail to the Flag, It's the 1st of July
More analysis to follow, here and obviously elsewhere.

Update: Notable round ups at The Importance of... and The EEJD blog.


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