Reply Brief of Petitioners in American Library Association et al. v. Federal Communications Commission, et al., commonly known as the Broadcast Flag Court Challenge.
The full text of the filing is available here (PDF).
Summary of Argument
The FCC claims that Congress granted it “broad” ancillary authority 70 years ago to regulate television receiver design — a power the FCC never sought to exercise until now. Yet the FCC has not identified any provision of the Communications Act (“Act”) giving it this authority. It has not explained how this purported authority is ancillary to any power Congress gave it to achieve the digital television (“DTV”) transition. And it has not squared its assertion of authority with Congress’ decision in the All Channel Receiver Act (“ACRA”) to grant the FCC narrow authority to ensure that TV sets receive all channels while withholding the broad power over television sets that the Commission now claims.
The FCC argues that the ACRA was only meant to “clarify” its preexisting broad authority. However, neither Congress or the FCC itself believed so when the ACRA was enacted; nor does this Court. The FCC testified that it was “powerless” to impose “all channel” requirements on TV receivers without a new law. Moreover, the ACRA’s legislative history clearly states that Congress was “giving” the FCC this type of power for the first time. And this Court has found that Congress intended to “carefully limit” the FCC’s authority, a point not addressed by the FCC’s brief.
The FCC’s and MPAA’s challenge to expressio unius falters for the same reason. Having specifically enumerated when, what, and how the FCC may dictate consumer electronics design, Congress clearly marked the boundaries of FCC regulation in this field. Nevertheless, the Flag proponents assert that in each instance, Congress was merely underscoring that the FCC could act; yet Sections 302a, 303(e), and 303(s) plainly “grant” the FCC new authority. The FCC and MPAA essentially rely on the absence of a “general prohibition on device regulation” in the Act. MPAA Br. at 21. This reliance rings hollow, especially considering the cornucopia of regulations on devices that an imaginative agency could devise if the absence of such a ban had any meaning.
Indeed, even if the FCC had residual jurisdiction to regulate DTV receivers, the Broadcast Flag rules are not ancillary to any authority given the FCC. The FCC’s reliance on Congress’ command that the DTV transition must occur is undercut by the fact that Congress gave the FCC specific authority to accomplish this goal — the power to issue licensing rules, and the power to make rules ith respect to ancillary and supplemental services. The FCC does not claim that what it did here falls within either of these two delegations of authority. The argument that the Broadcast Flag is necessary to achieve the DTV transition is further impeached by a glance at who makes it. Broadcasters, who have the most direct interest in the transition, have not intervened. It is left to a group of copyright holders essentially unregulated by the FCC to argue altruistically that the rule is necessary to ensure that broadcasting remains a “viable business.” Id. at 4, 16.
The FCC and MPAA also fail to explain why the FCC should be allowed to make new copyright policy when this is clearly Congress’ exclusive province. They claim that the Broadcast Flag does not violate the no-mandates provision of the Digital Millennium Copyright Act (“DMCA”), but this is not Petitioners’ argument. Rather, the provision is important as proof of the FCC’s lack of authority: the FCC has trespassed into Congress’ exclusive domain, restricting the fair use rights of the public by imposing a technological mandate even though Congress had declined to impose such a requirement. This is why the Supreme Court instructed that there must be “consistent deference to Congress when major technological innovations alter the market for copyrighted materials.” Sony Corp. v. Universal City Studios, 464 U.S. 417,429-31 (1984).
The FCC has created copyright policy by effectively foreclosing a number of otherwise fair uses of copyrighted works. The MPAA’s reliance on Universal City Studios, Inc v. Corley, 273 F.3d 429 (2d Cir. 2001) to counter this point is misplaced for a number of reasons. Among them, Corley assessed the constitutionality of a copyright law enacted by Congress, not the propriety of an unauthorized agency’s attempt to make copyright policy; the FCC’s rules would entirely foreclose certain fair uses, not just the “technically superior” manner of making them; the analog equipment on which the MPAA relies for its argument that such fair uses would still be available may soon disappear after the DTV transition; and, equally important, if the FCC has the power to prohibit some copying of broadcast programs, it follows that it also has the power to prohibit all copying of such programs without being subject to the discipline of the fair use doctrine.
Finally, the FCC acted arbitrarily, and neither Flag proponent has substantiated the empty assumptions on which the Flag regime was built.
