Court Says FCC Out-of-Bounds With Digital TV

USA4034 writes "A U.S. appeals court on Tuesday stated that regulators had overstepped their authority by imposing a rule designed to limit the copying of digital television programs." From the article: "The FCC rule aims to limit people from sending copies of digital television programs over the Internet. The FCC has said copyright protections are needed to help speed the adoption of digital television."

Comments

Re:But they didn't say ,"Stop!"

[general_re]

In order to challenge a blatantly unconstitutional and unjust law, I must first become its victim, because I cannot challenge a law until I have been brought up on charges based on that law.

False, moderation notwithstanding. The term you're looking for is "facial challenge".

Re:But they didn't say ,"Stop!"

[Kentsusai]

Yes you are very right.

That is because America has a legal system based on the Common Law. Just like England and Australia.

Countries based on a Civil Law system such as France allow people to get rulings from a court prior to them performing an act. For example, if you were in France you could go to a court and ask "Can I download this file?" You will be given a definite "Yes" or "No" and that statement made by the court will be binding.

In order to solve this problem, Common Law jurisdictions have to develop an "Interpretations Court". What this court would do is allow people to ask whether it is legal to do what they want. Just like France.

The problem with implementing such a system is that it may be unconstitutional. The reason why it would be unconstituional is because the users of the lower court would want a binding affirmation, one that could not be overturned by the Supreme Court. This would be unsound in the terms of the Constitution. The Supreme Court is not meant to be bound by lower courts.

Re:except that

[theLOUDroom]

what about all those rules re; radio interferance and cell phone & wifi antenna/design registrations.

is that not dictate how electronic devices must be made

NO IT"S NOT.

The FCC (generally) only has the authority to dictate the use of the electromagnetic spectrum.
THEY DON'T TELL MANUFACTURERS HOW TO BUILD THINGS.
They don't tell them how to build Xboxes, cellphones, etc.
They tell they that you device must be designed in such a way that it will meet with their regulations on the EM spectrum.

This is all they are allowed to do, BY LAW.
If "the people" (a term I use very loosely...believe me) decide that the FCC should actually be able to tell manufactures to respect the broadcast flag, the a law must be passed saying they have the authority to do so.
This is what the cellphone industry pushed through for scanners and thing is what the television industry will have to do:
Buy a law.
Isn't democracy grand?

Notes from an information law student.

[cmclean]

This morning's oral arguments (along with a bunch of other stuff) were blogged by an "informal law student" here. Some useful insight into what's happening behind the news reports.

Re:But they didn't say ,"Stop!"

[rgmoore]

Seeing the word "God" repeated through out the Declaration of Independance and the Constitution may cause you to think that - because, of course, no other religions call their higher power just plain old "God".

Actually, I don't see "God" repeated throughout the Declaration of Independence and the Constitution. The word "God" appears exactly once in the Declaration of Independence (in the phrase "Nature and Nature's God") and zero times in the Constitution. If anything, I'd say that makes "God" conspicuous by its absence.

Re:But they didn't say ,"Stop!"

[VValdo]

...zero times in the Constitution

Down at the bottom... (bold is mine)

"Done in convention by the unanimous consent of the states present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty seven and of the independence of the United States of America the twelfth."

I've seriously seen the above used to argue that God's divinity is recognized in the Constitution. (counter-argument: names of days and months in the Constitution recognize divinity of ancient Greek and Roman gods.)

Today is George Washington's bday.

W

lawyerly observations

[hawk]

I am a lawayer, but this is not legal advice. If you get legal advice on slashdot, your flag bit is wrong.

I'm not surprised at all by the ruling that the FCC overstepped, we've been seeing quite a lot of rulings recently that agencies have overstepped their authority. Broadly speaking, administrative agencies cannot make choices *about* policy, but ponly about how to *implement* the policy given by Congress (or state legislatures). To significantly deviate from what can be done with other technologies is a policy choice, not an implementation choice, and would require a charge from Congress.

What i find odd is that the court ruled on these merits while still "concerned" about jurisdiction.

And that's when I looked closer.

The court didn't *say* anything today. Judges ask questions during oral arguments, some of which suggest a position. Often, the same judge will ask questions which make it sound like he holds conflicting positions. That's normal.

That said, the statement "You crossed the line," is a bit strong even for oral arguments, and does suggest that *that judge* is strongly leaning in thhat direction.

Still, though, the court has done *nothing* at this time.

I would be surprised, though, if the ruling doesn't come out before July 1. With two judges apparently leaning in a direction, the usual standards for a restraining order against enforcement of the law would seem to have been met.

As far as standing, I would expect (but certainly wouldn't bet my house on it!) that a single actual consumer as a petitioner would have standing to sue--the inability to buy devices currently on the market should be a sufficient real harm. An "assoiacion" is a much larger stretch. The courts are frequently hostile to such standing. That said, I can't tell from the slipshod reporting who the other petitioneers are. I'd be surprised if the lawyers for petitioners didn't bother to include at least one real person as a named plaintiff.

hawk, esq.

Re:But they didn't say ,"Stop!"

[Anonymous Coward]

And when one Googles "facial challenge" one comes across the transcript of National Endowment for Arts vs. Finley which says, among other things:
"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."

Re:But they didn't say ,"Stop!"

[Christopher Cashell]

Really?

Can you point out who it was that "voted" for the broadcast flag?

Oh, wait, that's right. It wasn't voted on. It was mandated by the FCC.