Two of the judges on the U.S. Circuit Court of Appeals for the District of Columbia said the FCC never received permission from Congress to adopt such a sweeping regulation, the Associated Press reported February 23. FCC attorney Jacob M. Lewis contended it was permissible since Congress didn’t explicitly forbid it.
Judge Harry Edwards said the FCC had “crossed the line,” asking, “Are washing machines next?” Judge David B. Sentelle observed that while entertainment companies could be reluctant to broadcast high-quality programming that can’t be protected against copyright violators, that wasn’t the FCC’s problem. “It’s going to have less content if it’s less protected, but Congress didn’t direct that you have to maximize content,” he said.
Sentelle also questioned whether the groups can lawfully contest the agency, the online CNet News reported February 22. “You have to have a harm that distinguishes you from the public at large,” he said. “If there is not a particularized harm, you do not have standing.” If the panel decides that coalition lacks standing, it would dismiss the case regardless of its merits. A decision is expected within months.
Posted February 25, 2005.