DC Circuit to FCC: Back Off
Today's broadcast flag ruling [pdf] from the DC Circuit has significant implications for the future of internet regulation in this country. As I've argued (plug for law review article — why not download the article?), and as the court today found, the Federal Communications Commission does not have power to make rules about products and services that don't fall under its existing statutory authority over telecommunications companies, broadcasters, and cable companies.
The specific context for the flag ruling is the Commission's assertion of dominion over devices that are capable of receiving digital television signals — a broad range of consumer electronics devices and PCs. The Commission adopted a rule back in late 2003 that would have required all of these devices, and the devices that interoperate with them, to recognize a marking scheme aimed at protecting particular content from widespread transmission over the internet. The FCC felt it had to do this in order to “fulfill its responsibility of implementing the transition to digital television.”
The DC Circuit (in a unanimous opinion) found that the Commission didn't have power from Congress to make rules about what devices do with content once that content has been received. It also said that the court didn't need to defer to the FCC's statements about its jurisdiction because this delegation from Congress had not occurred.
The court reasoned that Congress has given the FCC power over entities engaged in “communication by wire or radio.” Making consumer electronics devices and computers recognize a particular marking scheme after they've received an electronic transmission (but when they aren't “communicating” in any way) is beyond those powers.
Although the DC Circuit didn't have to reach this question, my view is that when the FCC starts making rules about a VoIP application that doesn't terminate calls using a traditional telephone number, or an email application, or PCs, or anything else it hasn't traditionally made rules about, it will be acting beyond the powers given it by Congress. This means we will have to have a sustained national conversation about the scope of the FCC's authority over the internet before the Commission can act.
From what I've been hearing, it's going to take several years for any rewrite of the Communications Act to happen. In the meantime, today's opinion signals that the FCC should act with self-restraint.
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3 Responses to “DC Circuit to FCC: Back Off”
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If citizens remove copyright information, I think the act is illegal in spite of the judgment on May 6.
Since DMCA1202 exists,I think that the situation has changed nothing.
The prior comment seems unclear on the broadcast flag concept. There is no need to remove the flag (even assuming it qualifies for protection under 1202). In the absence of a mandate, device makers remain free to make technologies that simply ignore the flag, as they are entitled to under 1201(c)(3) (even assuming the broadcast flag regime otherwise qualifed for protection under 1201). Ignoring the flag cannot give rise to liability under 1202.
[…] [DC Circuit to FCC: Back Off, from the summer of 2005, describes the broadcast flag case, and I wrote frequently about this subject in 2003 and 2004.] […]