From: Robert Cannon <rcannon100@xxxxxxxxx>
Date: May 6, 2005 8:37:38 AM PDT
To: CYBERTELECOM-L@xxxxxxxxxxxxxxxx
Subject: ALA v. FCC (Broadcast Flag)
Reply-To: Telecom Regulation & the Internet <CYBERTELECOM-
L@xxxxxxxxxxxxxxxx>
<http://pacer.cadc.uscourts.gov/docs/common/opinions/
200505/04-1037b.pdf>
It is axiomatic that administrative agencies may issue
regulations only pursuant to authority delegated to
them by Congress. The principal question presented by
this case is whether Congress delegated authority
to the Federal Communications Commission (“Commission”
or “FCC”) in the Communications Act of 1934, 47 U.S.C.
§ 151 et seq. (2000) (“Communications Act” or “Act”),
to regulate apparatus that can receive television
broadcasts when those apparatus are not engaged in the
process of receiving a broadcast transmission. In the
seven decades of its existence, the FCC has never
before asserted such sweeping authority. Indeed, in
the
past, the FCC has informed Congress that it lacked any
such authority. In our view, nothing has changed to
give the FCC the authority that it now claims.
.. . . . .
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.
So ordered.
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