Today was a good day.  Justice O'Connor spoke at Cardozo's graduation.  And the D.C. Circuit said "No" to an FCC request that the court hold off on considering the FCC's jurisdiction to enter the broadcast flag rule [pdf].

This D.C. Circuit order is good news.  FCC argued that their jurisdiction shouldn't be questioned until the Commission had worked through the filings by MPAA and NCTA asking for even harsher rules.  Public Knowledge, the American Library Association, and others, ably represented by Steptoe & Johnson, reasonably responded that all of these filings rested on the assumption that FCC had the jurisdiction to do what it did in the first place.  So there was no reason to suspend an attack on FCC's institutional competence to enter the rule.  

As a practical matter, because the FCC order mandates that all manufacturers snap to attention and comply by July 2005, suspending the jurisdictional challenge would have made it worthless.  Manufacturers have to go into production, and don't have the luxury of betting that a different regime will be put into place. 

I believe that this jurisdictional challenge is serious, well-stated, and worthwhile -- and I'm hoping it will result in a Congressional reconsideration of what the FCC has been up to.  The D.C. Circuit doesn't usually turn down FCC requests, and that it has done so in this case shows the importance of what's going on here.

Bravo to Public Knowledge and Steptoe -- and here's hoping cool heads will continue to prevail on the D.C. Circuit.