Order on Standing 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 order is available here (PDF).
Requirement of Petitioners
The following excerpt from the order details additional requirements of the petitioners:
We turn now to what is required of petitioners in this case. We note that, in joint comments submitted to the FCC pursuant to a notice of proposed rulemaking on the broadcast flag regime, see In the Matter of Digital Broadcast Copy Protection, Notice of Proposed Rulemaking, 17 F.C.C.R. 16,027 (2002), and in various submissions to this court, the American Library Association, the American Association of Law Libraries, the Association of Research Libraries, the Medical Library Association, and the Special Library Association raised the possible effects of the adoption of a broadcast flag regime on the ability of libraries to make legitimate uses of digital content related to their research and educational missions. See Joint Comments of 12/6/02, J.A. 669-70. The court now seeks amplification of these points and, in particular, requests that petitioners address several matters in affidavits we request with this opinion.
First, is the Television News Archive at Vanderbilt University, discussed at J.A. 669, a member of any of the petitioning associations? If not, are any of petitioners’ members engaged in the process of storing television broadcasts and sending copies of those broadcasts to distant locations?
Second, petitioners must explain whether there is a substantial probability that the Commission’s broadcast flag regime will hinder the ability of any of petitioners’ members to engage in otherwise permissible copying and distribution of television broadcasts to distant locations and, if so, in precisely what way such hindrance is likely to occur.
Third, in their Joint Comments of 12/6/02, American Library, et al. stated: “A broadcast flag … would hinder precisely what the TEACH Act is designed to promote. For example, an educator who wishes to use excerpts from a television news program to illustrate a lesson in the electronic classroom might not be able to record the program, nor to incorporate the material into a lesson designed for students in a class whose access is through the Internet.” J.A. 670. Do any of petitioners’ members qualify as “accredited nonprofit educational institution[s]” under 17 U.S.C. § 110? If so, petitioners must explain precisely how the broadcast flag regime will hinder these members in their ability to engage in distance learning or other electronic teaching covered by the TEACH Act. See Technology, Education, and Copyright Harmonization Act, Pub. L. No. 107-273, § 13301, 116 Stat. 1758, 1910 (2002).
Finally, are there any injuries (not including the potential increased cost of consumer electronics), not addressed by the foregoing questions, that identifiable members of petitioners’ organizations will face as a result of the broadcast flag regime? If so, petitioners must identify the relevant member or members and describe the precise nature of the injury that will be caused by the FCC’s adoption of the broadcast flag regime.
Petitioners should file affidavits addressing the questions raised above within two weeks of the issuance of this opinion, along with an accompanying brief of no more than 4,000 words. We remind petitioners that, in order for them to establish injury in fact, these affidavits must include specific facts demonstrating that there is a substantial probability that the FCC’s order will “directly affect[]” the ability of at least one of petitioners’ members to make legitimate use of digital content in relation to its research or educational missions or that the FCC’s order will directly affect some other judicially cognizable interest. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184 (2000). Affidavits containing “general averments,” “conclusory allegations,” and “speculative ‘some day’ intentions” are inadequate to demonstrate injury in fact. Id. (internal quotations and citations omitted). Finally, if they so desire, the Commission and MPAA will be allowed ten calendar days after petitioners submit their affidavits and brief to submit briefs of not more than 4,000 words each addressing petitioners’ Article III standing.
So ordered.
