[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



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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