This month, the Cyberlaw Clinic filed an amicus brief in Public.Resource.Org v. Federal Communication Commission in the United States Court of Appeals for the District of Columbia Circuit on behalf of news organizations. The brief supports an appeal by Public.Resource.Org, which is challenging the Federal Communication Commission’s (FCC’s) compliance with the Administrative Procedure Act for its alleged failure to make the text of its regulation accessible to the public.
The brief—filed on behalf of the Reporters Committee for the Freedom of the Press and The New York Times—argues that law must be made available to the public. The petitioner is challenging an FCC regulation that incorporates by reference a set of standards developed by a private, for-profit company. The FCC published the text of its rule in the Code of Federal Regulations without including the private standards. Instead, it directed the viewing public to the private company’s website to access the standards. There, visitors can pay a fee to view the standards or sign a contract with the private company to view the standards under certain limitations. Petitioner challenges this process as being procedurally deficient under the Administrative Procedure Act (APA). Petitioner Public.Resource.Org submitted a comment challenging the FCC’s refusal to make these materials available. The FCC rejected Petitioner’s position, and Petitioner has now filed a lawsuit claiming that the FCC has violated the APA.
Amici represents the interests of journalists who report on federal regulations. Without access to the full text of the law, journalists cannot inform the public about the rules that govern their lives. Therefore, the amici have a strong interest in ensuring that federal law remains accessible to all interested parties.
The brief argues that: (1) First Amendment principles of access to government affairs should guide the court’s reasoning in its application of the APA in this case; and (2) the public interest is harmed when access to the law is incomplete. The brief urges the court to rule in favor of the Petitioner’s position that the case be remanded to the Federal Communication Commission for further proceedings consistent with an appropriate reading of the APA.
The Samuelson-Glushko Technology Law & Policy Clinic at the University of Colorado Law School also submitted an amicus brief on behalf of the American Foundation of the Blind and Prime Access Consulting, Inc., which are advocacy organizations. That brief argues that the FCC’s suggested modes of access to the incorporated standards create barriers for Americans with many kinds of disabilities.
Spring 2024 Cyberlaw Clinic students Nilofar Vakili, James Atlas, Jeane Khang, and Alec Winshel worked on the brief under the supervision of Managing Director Chris Bavitz. The Clinic looks forward to the D.C. Circuit’s decision in the case.
“District of Columbia Court of Appeals” by AgnosticPreachersKid is licensed under CC BY-SA 3.0.