Good news from the DC Circuit today, which issued an opinion asking for further facts about petitioners' right to be in front of them complaining about FCC's jurisdiction in the broadcast flag matter. Everyone (including, apparently, the FCC) assumed quite reasonably that the petitioners had every right to be there -- in other words, everyone thought petitioners had "standing."
But the DC Circuit wasn't so sure about it. Under the applicable legal standard, you have to show a concrete, particularized, actual/imminent harm from an administrative rule in order to complain about it. The petitioners in this case include the American Libraries Association, Public Knowledge, and EFF. (Things would have been simpler if a single consumer electronics manufacturer had wanted to face the ire of the content community and join the lawsuit.)
At oral argument, petitioners' concrete etc. harm was sharply questioned -- how was one consumer's harm any different from that of the rest of the populace?
The court has given petitioners two weeks to provide statements of facts showing special harms caused by the broadcast flag rule -- and has provided some helpful hints: show us whether any of your members are engaged in storing TV broadcasts and sending them to distant locations; show us whether you'll be hindered in lawful copying and distribution; show us whether your member-educators (if you have any) will be hindered in distance education efforts.
I think this court wants to find standing. Once this legal threshold is in place, the court can walk right in and declare that the FCC had no jurisdiction to adopt the flag rule. And we'll be back at Congress.
The implications of this case are much broader than they may appear on the surface. FCC is asserting very broad jurisdiction over anything associated with the overall circuit of messages sent and received via all interstate radio and wire communication. The Madison River flap of two weeks ago is part of this overall picture. I don't think the FCC's powers extend beyond what is specifically given them by Congress -- and Congress hasn't given the FCC the internet, PCs, or consumer electronics devices.
When this hot potato is back in Congress's lap, it should act to lead the world in self restraint. Don't do it. Don't let one industry (content, law enforcement, or telecom) control another (high-tech innovation) without a strong social consensus to do so.