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Broadcast Flag in Trouble
pdqlamb writes "USA Today reports an appeals court was not amused at the FCC's broadcast flag rule. Sounds like the judge bought into the argument that the FCC does not have the authority to dictate device design. The broadcast flag isn't quite dead yet, but at least it's in trouble."
The flag isn't dead *yet*... IANAL but my understanding is there's another step to stop it's implmentation. i.e. the judges (2 of them anyways) agreed that it was a ludicrous overreach by the FCC to be enforcing copyright laws and outside their mandate. Unfortunately that revelation won't stop the courts from screwing up the final decision and letting the Broadcast Flag come to fruition.
Also as noted by previous posters, even if FCC gets the full smackdown, they seem confident they can go to congress and get them to pass the mandate they didn't have to begin with =(
I posted a bunch of Broadcast Flag related links here
e.
Build Your Own PVR/HTPC news, reviews, &
When saying that the jugde didn't buy that the FCC has the right to pass this rule, it should be noted that here was no actual ruling, and that the court might even decide that the case can't be brought by the parties that filed it (which leads to the crazy logic that the judge outright says that the FCC has no right to make this rule but he'll do nothing about it). Worse, with no rule set by the courts and the deadline fast approaching, manufacturers who want to stay in business have little option but to supprt the damn flag. They are less likely to spend more money later to redesign new hardware to omit support for it again, and if they do that will only drive the price of HDTV even higher.
I'm an American. I love this country and the freedoms that we used to have.
You don't have authority to require people to pay fines, and that is enshrined in law. The government does, and unless you're part of the government, even by extension (deputized, for example), you don't have such a power, and you are explicitly barred from collecting such fines.
Congress is usually pretty specific on the powers it grants to the FCC. There have been several occasions when the FCC has found a loophole, and Congress has closed it rapidly. If they don't have legal authority here, Congress will have to explicitly give them such authority, which will probably get bogged down in debate. Many members of Congress are not particularly keen on these kinds of powers.
You can never go home again... but I guess you can shop there.
Not to nit-pick, but removing environmental enforcement provisions and letting Microsoft out of antitrust enforcements are both actions that make the market more free. Consumer protection and corporate protection are both regulated influence on the markets, something with a free market is supposed to avoid.
I am a lawyer, but this isn't legal advice. If you can somehow construe this as legal advice, the circus wants you as a contortionist.
The 10th would only affect whether or not Congress had the power, not whether or not htey delegated it.
Even assuming that Congress *does* have it, it would have to explicitly grant authority for this function to the FCC (or any other administrative agency). OTOH, if Congress doesn't have it, there is no way, whether it granted it or not, that the FCC could excercise it.
hawk
I would simply respond with a look at budget surpluses and deficits from the 60's through today. Try out my untrustworthy biased liberal sources.
Stays pretty decent until *shock* 1983! Then it gets better in *shock* the mid 90's! It drops off a cliff again in *shock* 2002!
No, no pattern at all there. Nope. [AHEM...Tax Cuts, Iraq Wars, Arms Race...AHEM]
I don't know what kind of crack I was on, but I suspect it was decaf.
No way man. Some Taiwanese factory will crank out no-bit HDTV cards and they will sell like hotcakes. Any card with the bit will be DOA. Who wants to buy crippled hardware when non-crippled is available?
At least 2 out of the 3 judges were skeptical of the FCC's arguments, though some of them were also skeptical of some of the claims of hte challengers. I attended the hearings and blogged a play-by-play of the argument.
I am a lawyer - and that's not the way it works. The legal concept of Res Judicata (Litterally - the thing is judged). Prevents parties who are unhappy with the results of a legal suit from refiling the case between the same parties based on facts arising out of the same events. So if they lose in the D.C. Circuit (which, unlike most circuits, has nationwide jurisdiction) they can't just try again in another circuit. They can, of course, apply for an en banc rehearing and after that to the US Supreme Court.