[opendtv] Broadcast Flag Order vacated
- From: Monty Solomon <monty@xxxxxxxxxx>
- To: opendtv@xxxxxxxxxxxxx
- Date: Fri, 6 May 2005 13:11:22 -0400
Excerpt from the opinion at
ALA v. FCC
http://pacer.cadc.uscourts.gov/docs/common/opinions/200505/04-1037b.pdf
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). 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.
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