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  • WEDNESDAY FEBRUARY 23 2005 10:40 AM

US to FCC: "Quit Being Dicks!"

Submitted by Shal

Edited by Shal

A few years ago, the Federal Communications Commission tried to force use of the "broadcast flag" on the manufacturers of any device that could theoretically play copywrite-protected media. The broadcast flag is a bit of code that could block recording, copying, uploading, file-sharing of certain media, such as music and television shows by devices like a Tivo or PC.

The FCC claimed they had the ancillary right to force this content-protection standard on manufacturers because -- get this -- lawmakers had never told them they didn't have this power, so they could basically do whatever the hell they wanted.

Groups such as the American Library Association, the Association of Research Libraries, the Medical Library Association, Public Knowledge and the Electronic Frontier Foundation argued that the FCC could not, in fact, do whatever the hell they wanted.

Today, a US Federal Appeals Court told the FCC to eat a dick.

"Ancillary does not mean you get to rule the world," [U.S. Circuit Judge Harry] Edwards said. He said the FCC "crossed the line" beyond its authority approved by Congress. "You've gone too far," he said. "Are washing machines next?"

Another circuit judge, David Sentelle, agreed. Sentelle acknowledged entertainment companies could be reluctant to broadcast high-quality movies or TV shows that can't be protected against copyright violators but said that wasn't the FCC's problem.

"It's going to have less content if it's not protected, but Congress didn't direct that you have to maximize content," Sentelle said. "You can't regulate washing machines.

"You can't rule the world."

Of course, the FCC is going to appeal the ruling, but for now consumer devices are safe from the restriction.

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Comments
theseeman

theseeman

Asheville, NC
December 2002

FEB 23, 2005 03:35 PM

Love that Steve Earle song.

The FCC is becoming less and less relevant. they just don't know it yet. which sucks a little bit since they are supposed to be working for us. Maybe we need to clean house?

minimalism

minimalism

Argentina
OLD SKOOL

FEB 23, 2005 03:37 PM

On a different and only semi related topic, this is really gaining my respect for the court system. The same one whose "rogue judges" allowed same sex marriages. They are the last check in the checks and balances we seem to have in place. Democracy would surley be dead by now without them.

[Edited on Feb 23, 2005 by minimalism909]

HenryTMensch

HenryTMensch

New York, NY
December 2004

FEB 23, 2005 03:48 PM

reprobate said:

HenryTMensch said:

reprobate said:
Dude, you say some interesting things, but you know its really had to get past the feeling that you enjoy the sound of your own voice overmuch. Given that you've made far more grievous factual errors than misapprehending the import of a badly written source article, you might consider being a little less supercilious.



Okay. You're right in that the source article from USA Today was pretty sucky, but shouldn't the solution be finding a good source article and understanding it, if you intend to publish a news story on the site. I'll cop to being anal and nit-picking. It wasn't my intent to be condescending when I pointed out the mistakes about FCC and "US Federal Appeals Court" etc. So if I gave that impression, I apologize.


More significantly, you've rather misapprehended the court's statements. What the court is saying is both that there is no delegation and there is no mandate, which is far more than a slight differentiation on the facts, it goes to the heart of the law. There is nothing in their powers or purview that remotely suggests that they have the ability or authority to regulate intellectual property. Congress alone has reserved that power and not delegated it even to agencies far better situated to address the issue.



My point was this: the argument that the FCC or another executive agency might have certain powers in the absence of such powers being denied to them by Congress rather than explicitly granted is not per se a terrible argument. I got the impression that Shalome thought it was because she editorialized ("-- get this --" or some such) when she was laying out that part of the story. In this instance it was a bad and unpersuasive argument because of the particular facts here. But it's not generally a frivolous line of argumentation.



Have you actually taken Admin Law, cause you really seem to be missing the point. The FCC's argument here is not that they have tacit, but unexplicated powers, it is that because there is an ancillary effect that they magically have ancillary powers not granted them by congress nor remotely within their mandate. It is one thing to argue that an action must be taken by a regulatory agency to affect and congressional directive and therefore the power to do that is implicit. That in and of itself is an argument the courts traditionally take a very dim view of. It is a weak and usually unpersuasive argument. It is quite another to say that because of some mythic attenuated impact an agency can regulate actions far beyond their mandate. That truly is a very sucky argument.



I guess I didn't understand the exact nature of what the FCC was arguing. Yes, it's pretty thin. I think my general point is fairly reasonable, even though you are also right in that courts generallly take a dim view of that sort of argument. No, I haven't taken Admin and don't intend to. I'm going to be doing transactional work when I graduate - though much of it will be highly regulated transactions.

MisterSatan

MisterSatan

Portland, OR
August 2002

FEB 23, 2005 05:45 PM

minimalism909 said:
On a different and only semi related topic, this is really gaining my respect for the court system. The same one whose "rogue judges" allowed same sex marriages. They are the last check in the checks and balances we seem to have in place. Democracy would surley be dead by now without them.


The Judicial System: It Rules!

gutterman

gutterman

Austin, TX
August 2003

FEB 23, 2005 08:16 PM

This kind of thing would never happen here in the UK.

Tony_Montana

Tony_Montana

Victoria, BC
February 2004

FEB 23, 2005 08:51 PM

HenryTMensch said:

In this case, yes. I agree with the ruling. You seem to be saying that the line of argumentation is patently absurd. It really isn't. On slightly different facts the FCC might easily have won. For example, if they had exercised these ancillary powers in the past and Congress had failed to act to stop them from doing so, they might have persuaded the DC Circuit Court of Appeals that it could infer that Congress intended to give them such ancillary powers because Congress didn't explicitly forbid ancillary powers and failed to act to curtail exercise of such power in the past. Generally when Congress gives a mandate to an executive agency, it's assumed that Congress has also empowered the agency with enforcement / rule making powers unless Congress explicitly limits that sort of power.



Isn't that the argument Thomas Jefferson used to make the Louisiana Purchase?

LexieDeluxe

LexieDeluxe

Philadelphia, PA
September 2004

FEB 24, 2005 07:29 AM

"You can't rule the world."

That's a lovely, succint statement that should be applied far more often than it is. Like, for example, to our fearless leader (if you can call him that).

njc

njc

Worcester, MA
October 2004

FEB 24, 2005 08:14 AM

Eric Idle says it best...

http://www.pythonline.com/plugs/idle/

Listen to the mp3 smile

CoolSilver

CoolSilver

Newark, OH
October 2004

FEB 24, 2005 09:40 AM

FCC has become the little piece of comunism in the US,

They control every aspect of tv, radio and I am sure the internet if they had their way.

What happened to the first amendment rights the FCC is supposed to uphold?

They spread propaganda of indecent material ontv and cds with a label. I guess it isn't too bad to let parents know what is questionable with younger childern.

But hell once I was 10 I heard more of the F word than anything else and I'm fine. Parents job to monitor once their able to see the point behind it they can see or hear questionable things and limit themselves.

Micheal Powell is a fucking moron, he was appointed by Bush. One of the few republicans I don't like at all.

[Edited on Feb 24, 2005 12:44PM]

beaky

beaky

Miami, FL
April 2003

FEB 24, 2005 09:53 AM

FCC = Frustrated Cock Cleaners

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