American Library Ass'n v. F.C.C.

• Decision Date: 15 March 2005
• Docket Number: No. 04-1037.,04-1037.
• Citation: 401 F.3d 489
• Parties: AMERICAN LIBRARY ASSOCIATION, et al., Petitioners v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Motion Picture Association Of America, Inc., et al. Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 489

401 F.3d 489

AMERICAN LIBRARY ASSOCIATION, et al., Petitioners v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents

Motion Picture Association Of America, Inc., et al. Intervenors.

No. 04-1037.

United States Court of Appeals, District of Columbia Circuit.

Argued February 22, 2005.

Filed March 15, 2005.

On Petition for Review of an Order of the Federal Communications Commission.

Pantelis Michalopoulos argued the cause for petitioners. With him on the briefs were Cynthia L. Quarterman, Rhonda M. Bolton, Lincoln L. Davies, and Gigi B. Sohn.

Jacob M. Lewis, Attorney, Federal Communications Commission, argued the cause for respondents. With him on the brief were R. Hewitt Pate, Assistant Attorney General, Catherine G. O'Sullivan and James J. Fredricks, Attorneys, John A. Rogovin, General Counsel, Federal Communications Commission, Austin C. Schlick, Deputy General Counsel, Daniel M. Armstrong, Associate General Counsel, and C. Grey Pash, Jr., Counsel.

Christopher Wolf, Bruce E. Boyden, Mace J. Rosenstein, and Catherine E. Stetson were on the brief for intervenor Motion Picture Association of America, Inc.

Before: EDWARDS, SENTELLE, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

Dissenting opinion filed by Circuit Judge SENTELLE.

HARRY T. EDWARDS, Circuit Judge.

This case involves a challenge by petitioners American Library Association, et al. to a rule adopted by the Federal Communications Commission ("FCC" or "Commission") requiring digital television receivers and related electronic equipment manufactured on or after July 1, 2005 to give effect to the "broadcast flag," a code that broadcasters can insert into digital television content, which signals reception equipment to limit the redistribution of that content. See In the Matter of Digital Broadcast Content Protection, Report and Order and Further Notice of Proposed Rulemaking, 18 F.C.C.R. 23,550 (2003). Although petitioners have an obvious interest in the rule, and they plausibly contend that they will be adversely affected by its implementation, a question has arisen about their standing to pursue this petition for review.

The present petition for review poses an unusual situation with respect to the court's consideration of standing. In Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.Cir.2002), we indicated that "a petitioner whose standing is not self [-]evident should establish its standing by the submission of its arguments and any affidavits or other evidence appurtenant thereto at the first appropriate point in the review proceeding." This case presents a situation not explicitly contemplated by Sierra Club. Both petitioners and the Commission reasonably, if inaccurately, concluded that petitioners' standing was self-evident, so neither party pursued the matter in their opening briefs to the court. An intervenor, Motion Picture Association of America, Inc. ("MPAA"), supporting the Commission, interposed a vague and limited challenge to petitioners' standing, which prompted an equally vague and limited response from petitioners in their reply brief, no response from the Commission, and no request for additional information from the court before oral argument. After hearing arguments, which did not resolve the issue, and reviewing the administrative record, which is not fully illuminating on the matter of standing, we have concluded that more is required in order for the court to determine conclusively whether petitioners have Article III standing.

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In their initial submissions to the court, both petitioners and the Commission apparently assumed that petitioners' standing was "self-evident" under Sierra Club. Petitioners included a jurisdictional statement in their opening brief in which they generally asserted a basis for Article III standing. See Petitioners' Br. at 1 (stating that "[e]ach of the petitioners . . . has members whose right to make use of copyrighted information will be adversely affected, and who will very likely have to pay higher prices for certain consumer electronics equipment, as a result of the Commission's Order."). This statement was not contested by the Commission. After petitioners filed their opening brief, MPAA suggested in a single paragraph of its brief that petitioners had failed to comply with Sierra Club. It was unclear, however, whether MPAA merely meant to suggest that, because in its view standing was not self-evident, petitioners had failed to satisfy the "pleading requirements" of Sierra Club or, additionally, meant to contend that petitioners lacked Article III standing. See MPAA Br. at 1. Petitioners responded to MPAA's argument in their reply brief, asserting in general and conclusory terms that they did have standing and providing some citations to case law and the administrative record. See Petitioners' Reply Br. at 6 n.1. The FCC did not weigh in on the issue, apparently viewing petitioners' standing as self-evident. And the court did not seek additional information from the parties before oral argument.

During the course of oral argument, counsel for the FCC confirmed that the Commission was not challenging petitioners' standing in this case. Recording of Oral Argument at 29:01-:17. When members of the court questioned petitioners' counsel regarding standing, petitioners cited portions of the administrative record in support of their standing. After oral argument, petitioners provided additional citations in a letter to the court. See Petitioners' Letter Providing Citations of 2/23/05. These citations give some indications that petitioners' members will suffer concrete and particularized injuries from the Commission's disputed broadcast flag rule. See, e.g., Joint Comments of American Library Association, et al., 12/6/02, reprinted in Joint Appendix ("J.A.") 654, 669-70 (comments submitted by five petitioners to the FCC before the adoption of the order in dispute, asserting that a broadcast flag regime would impair libraries' capacity to make legitimate use of digital content to promote research by making copies of television broadcasts available to distant locations and would hinder educators' capacity to make legitimate use of digital content to facilitate distance learning). But the information to which petitioners pointed was not compiled to address standing and thus does not fully illuminate the issue. Apparently understanding this, petitioners suggested that an expedited briefing order would be warranted if the court determined that further argument regarding standing would be useful. See Petitioners' Letter Providing Citations of 2/23/05.

On the record before us, we conclude that petitioners reasonably believed their standing is self-evident. Our conclusion is based on several considerations. First, the petitioners represent a large number of libraries and consumers who indisputably will be directly affected by the broadcast flag rule. Therefore, petitioners had good reason to assume that at least one of their members would suffer an Article III injury with the implementation of the disputed rule. Moreover, the Commission conceded that the flag rule would result in increased costs to consumers. Second, nothing in the record alerted petitioners to the possibility that their standing would be challenged in this court. Third, the administrative record provides examples of legitimate uses of information technologies made by libraries that could be adversely affected by the flag rule.

In short, petitioners — like the Commission — reasonably assumed that their standing was self-evident and, as a result, did not support their standing with anything more than a general jurisdictional statement in their opening brief and citations to portions of the administrative record. Although we now require more from petitioners, we find that they did not defy any commands of Sierra Club in their initial submissions to the court.

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It is well established that a federal court cannot act in the absence of jurisdiction, see B & J Oil & Gas v. FERC, 353 F.3d 71, 74-75 (D.C.Cir.2004), and that jurisdictional issues may be raised by the court sua sponte, see, e.g., Lee's Summit, Mo. v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C.Cir.2000). It is equally well established that Article III standing is a prerequisite to federal court jurisdiction, see, e.g., Crow Creek Sioux Tribe v. Brownlee, 331 F.3d 912, 915-16 (D.C.Cir.2003), and that petitioners carry the burden of establishing their standing, see, e.g., KERM, Inc. v. FCC, 353 F.3d 57, 59 (D.C.Cir.2004).

Associations such as petitioners have representational standing if: (1) at least one of their members has standing to sue in her or his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires the participation of an individual member in the lawsuit. Cmtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 684 (D.C.Cir.2004) (citing Hunt v. Wash. State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)); see also United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553-57, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996) (explaining that Hunt lays out the test for associational standing, which is one strand of representational standing). In this case, we can find no reason to doubt that petitioners satisfy the latter two requirements of associational standing, and neither the FCC nor MPAA suggests otherwise. Therefore, petitioners need not address these points in their supplemental submissions. See Sierra Club, 292 F.3d at 898. The focus of our inquiry is whether at least one of petitioners' members has standing to sue in her or his own right.

In order to meet this prong of the associational standing test, petitioners must demonstrate that at least one of their members satisfies the three elements that form the ...