Letter to FCC: No Jurisdiction To Impose the Broadcast Flag Scheme
Led by Public Knowledge, a group of plaintiffs is challenging the FCC's jurisdiction to enter the flag rules. (And only just in time — the rules will otherwise take effect in mid-2005.) Read the brief [pdf], and see particularly fn.15: The FCC arguably does not have legislative rulemaking authority at all under Title I of the Communications Act.
Translation: when FCC is dealing with something or somebody who isn't a common carrier (Title II), a broadcaster (Title III), or a cable company (Title VI), it needs express statutory authority from Congress to make rules about that something or somebody.
This footnote has implications for the IP-enabled services rulemaking as well as the current broadcast flag case. If an IP-enabled service doesn't use the traditional telephone numbering system, arguably the FCC doesn't have any say over it. No social policies. No pretending that the entire internet is an “information service” over which FCC has ancillary jurisdiction.
It's a fine brief, and we'll see what the FCC has to say in response — and we'll all be watching how the D.C. Circuit deals with these large jurisdictional problems. Who's in charge of the internet? We are — the end users.
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