[Fsfe-france] Broadcast Flag Shot Down - FCC Has No Authority Says Court

[tariq KRIM]

The Broadcast Flag regulation by the FCC has been vacated by theAppeals
Court for the DC Circuit.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200505/04-1037b.pdf
The conclusion:
The FCC argues that the Commission has "discretion" to exercise
"broadauthority" over equipment used in connection with radio and
wiretransmissions, "when the need arises, even if it has not
previouslyregulated in a particular area." FCC Br. at 17. This is
anextraordinary proposition. "The [Commission's] position in this
caseamounts to the bare suggestion that it possesses plenary authority toact
within a given area simply because Congress has endowed it withsome
authority to act in that area. We categorically reject thatsuggestion.
Agencies owe their capacity to act to the delegation ofauthority" from
Congress. See Ry. Labor Executives' Ass'n, 29 F.3d at670. The FCC, like
other federal agencies, "literally has no power toact . . . unless and until
Congress confers power upon it." La. Pub.Serv. Comm'n v. FCC, 476 U.S. 355,
374 (1986). In this case, allrelevant materials concerning the FCC's
jurisdiction - including thewords 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
electronicdevices that can be used for receipt of wire or radio
communicationwhen those devices are not engaged in the process of radio or
wiretransmission.
Because the Commission exceeded the scope of its delegated authority,we
grant the petition for review, and reverse and vacate the FlagOrder insofar
as it requires demodulator products manufactured on orafter July 1, 2005 to
recognize and give effect to the broadcast flag.

Congratulations to everyone involved!

--
Tariq KRIM, L8Rmedia
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Mon blog : tariqkrim.blog.lemonde.fr