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May 6, 2005
Court on Broadcast Flag: You Can't Hide Elephants in Mouseholes
Killer quote from the ruling against the FCC's broadcast flag regulation [PDF]:
We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver status. And the agency's strained and implausible interpretations of the Communications Act of 1934 do not lend credence to its position. As the Supreme Court has reminded us, "Congress does not...hide elephants in mouseholes." Whitman v. Am. Trucking Association 531 U.S. 457, 468 (2001). In sum, we hold that the Commission only has general authority under Title 1 to regulate appartus used for receipt of radio or wire communication while those appartus are engaged in communication.
Update: Another killer quote
, this one from a (naturally) ecstatic Cory
The [broadcast flag] rules set out to ban the use of Open Source/Free Software in digital television applications, and to require hardware components to be designed to be hard or impossible to create open drivers for. Fox exec Andy Setos told me that we were there to create "a polite marketplace" where no one would be allowed to disrupt his business model without getting his permission and cooperation first (cough planned economy cough commies cough).
I'm honored and thrilled to have been part of the gigantic upswelling of public outcry over this naked attempt to bootstrap the studios' limited monopoly over copying movies into an unlimited monopoly over the design of every device that might be used to copy a movie.
Update #2: Declan McCullagh @ CNET
: "In a stunning victory for hardware makers and television buffs, a federal appeals court has tossed out government rules that would have outlawed many digital TV receivers and tuner cards starting July 1. ...One result of Friday's ruling is that, if upheld on appeal, the fight over digital TV piracy will return to Capitol Hill. The court noted that the FCC 'has no power to act' until 'Congress confers power on it' through enacting a law explicitly authorizing the broadcast flag."
Update #3: Ernie Miller tracks the explosion of press coverage & commentary.
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