Disruption and Deference

Abstract

Congress enacted the Transmit Clause of the 1976 Copyright Act to resolve the high-stakes tussle between broadcasters and cable providers. But, today, that provision is ill-suited to resolving whether unauthorized streaming infringes on broadcasters’ copyright to perform works publicly. Its scope is ambiguous enough that judges across the country were notably divided on whether it reaches online video distribution — that is, until the Supreme Court ruled that it does in a divided opinion last term in ABC v. Aereo. Remarkably, none of the courts to address the question, including the Supreme Court, consulted the interpretations of video distribution law by the agencies to which Congress delegated the broad authority of doing so in closely related statutes. The courts assumed that they alone should interpret the scope of the Transmit Clause in the absence of a specific delegation from Congress to an agency to interpret the provision.

This Article argues that courts instead should consult all of the public law that Congress set in motion in the area of video distribution law before resolving novel disputes over the scope of the Transmit Clause. This reform would have purchase when, as is the case today, the Copyright Office and the Federal Communications Commission have authority to regulate overlapping aspects of online video distribution under the Copyright Act and the Communications Act, respectively. Although neither agency has the authority to interpret the Transmit Clause, current administrative law doctrine suggests that those agencies’ interpretations of closely related statutes are worthy of respect, if not deference. This Article accordingly argues for a more careful approach to substantive judicial review in this area than the courts have employed.

Keywords: Transmit Clause, copyright, communications, online video streaming