Posts by Bryan Suchenski:

The FCC has a positive role to play in the world of media, but not through antiquated indecency regulations for broadcast.

As Congress considers Obama’s nomination for FCC chairman, it is a natural time to also consider the ongoing role of the FCC. Many laypeople think of the FCC as the language police, or the nudity czar, but regulating content is only a small part of its job. The FCC was created to regulate communications in the public interest – does that mean it should control the content of broadcast programming? Even if content restricting rules were once appropriate, has their relevance gone away given the new realities of the communications marketplace?

These questions were raised before the Supreme Court last year when Fox challenged the FCC’s latest indecency regulations, which were being used to fine Fox for “fleeting expletives.” Public Knowledge, together with other organizations, submitted a brief asking the Court to limit the FCC’s authority to regulate indecent content in broadcasts, which is out of step with modern technological realities and inconsistent with the First Amendment.

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At a hearing on unlocking phones, some suggest that Congress added laws against circumventing access controls not just to fight piracy, but in order to protect particular business models. Businesses use this argument to justify using copyright law to criminalize activities that don’t actually infringe copyright.

Up until last year, unlocking a cell phone so that it could be used with a different carrier was perfectly legal. That changed when the Librarian of Congress decided no longer to include it in a list of exceptions to the Digital Millennium Copyright Act (DMCA), which forbids the circumvention of technology that controls access to copyrighted works. The Librarian’s decision has sparked a great deal of controversy, and lead to several proposed bills that would once again make it legal to unlock cell phones. In a hearing before the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet last Thursday, Congress heard testimony about one of these bills, and about the practice of unlocking phones.

Subcommittee Vice Chairman Tom Marino began the hearing by framing the considerations on each side in terms of their effect on the market and existing business models, pitting the promise of a more competitive marketplace that phone unlocking allows against the ability of carriers to recover the cost of subsidizing phones.

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