New tack on the broadcast flag
After wandering around for a while today, I think a good approach to the broadcast flag issue is to compare it to the tobacco jurisdiction wars. I think I will suggest that “if FDA cannot regulate cigarettes, FCC cannot regulate consumer electronics devices.” This should be sufficiently incendiary (so to speak).
The argument would be that courts shouldn't defer to agencies' broad/strained construction of their basic statutes where Congress has created a distinct regulatory scheme of its own. In tobacco, the Congressional scheme was called the Alcohol and Drug Abuse Amendments (and several other tobacco-specific pieces of legislation); in the broadcast flag arena, the Congressional scheme is called the Copyright Act. Although (perhaps) Congress may not have rejected proposals to give FCC jurisdiction over copyright protection, that's only because such a request would have been outlandish. But Congress (and the Library of Congress) clearly exercise authority over copyright policy. And I'm sure the FCC has said over the course of the broadcast flag wars that it has no jurisdiction over copyright. The recent Order is an abrupt about-face.
Additionally, the tobacco companies argued that Congress could not have intended to delegate a decision of such economic and political significance to an agency “in so cryptic a fashion.” And the Supreme Court found that the FDA's reading of “safety” throughout the FDCA act was extraordinarily strained. Here, similarly, regulating all consumer electronics devices has enormous economical and political consequences for the US — and the FCC's reading of its statute is contortionist.
The other appealing thing about writing about tobacco and copyright is that both issues have been so heavily and expensively (and elegantly) lawyered. It helps to have the biggest, most influential lobby in town — if you're the Tobacco Institute, you can get the Court to shut down the FDA, and if you're the MPAA you can get the FCC to jump.
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