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1. Comment - FCC to consider MPAA proposal to lift DVR control ban

   (Jun 9, 2008 - 8:52 PM)

   United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 22, 2005 Decided May 6, 2005 No. 04-1037
   
   AMERICAN LIBRARY ASSOCIATION, ET AL., PETITIONERS
   v.
   FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS
   
   MOTION PICTURE ASSOCIATION OF AMERICA, INC., ET AL. INTERVENORS
   
   On Petition for Review of an Order of the Federal Communications Commission
   
   http://pacer.cadc.uscour...ons/200505/04-1037b.pdf
   
   34
   III. CONCLUSION
   The FCC argues that the Commission has “discretion” to
   exercise “broad authority” over equipment used in connection
   with radio and wire transmissions, “when the need arises, even
   if it has not previously regulated in a particular area.” FCC Br.
   at 17. This is an extraordinary proposition. “The
   [Commission’s] position in this case amounts to the bare
   suggestion that it possesses plenary authority to act within a
   given area simply because Congress has endowed it with some
   authority to act in that area. We categorically reject that
   suggestion. Agencies owe their capacity to act to the delegation
   of authority” from Congress. See Ry. Labor Executives’ Ass’n,
   29 F.3d at 670. The FCC, like other federal agencies, “literally
   has no power to act . . . unless and until Congress confers power
   upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374
   (1986). [line breaks inserted for emphasis]
   
   In this case, all relevant materials concerning the FCC’s
   jurisdiction – including the words 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 electronic devices that can be
   used for receipt of wire or radio communication when those
   devices are not engaged in the process of radio or wire
   transmission.
   
   Because the Commission exceeded the scope of its
   delegated authority, we grant the petition for review, and reverse
   and vacate the Flag Order insofar as it requires demodulator
   products manufactured on or after July 1, 2005 to recognize and
   give effect to the broadcast flag.
   So ordered.
   
   If the FCC has no authority for the Broadcast Flag, they have no authority to authorize SOC.either. One could probably argue they have no authority to deny the use of either as well. However you'd think the copyright holder would be at risk for exceeding the rights granted by Congress, and whatever peril that might entail. It is Congress that the MPAA should be petitioning, not the FCC. My guess is that the strengthening copyright law at the expense of the balance to the public good is the equivalent (ACTA aside) of playing with green Kryptonite politically. The MPAA was a party to the above case, they should know better.