ARRL Files Reply with FCC over ReconRobotics’ Opposition to League’s Petition for Reconsideration
Following the ARRL’s March 24 Petition for Reconsideration of the FCC’s grant of a waiver to permit the operation of a robotic video device in the 430-450 MHz band, ReconRobotics filed an Opposition to the ARRL’s Petition, declaring that, among other things, the ARRL did not follow proper procedure when submitting it. On April 16, ARRL General Counsel Chris Imlay, W3KD, filed a reply.
In January 2008, ReconRobotics filed a request with the FCC for a waiver of Part 90 of the Commission’s Rules with respect to their Recon Scout product. A waiver is required to permit licensing of the Recon Scout because the device operates in the 430-448 MHz band, which is allocated to the Federal Government Radiolocation service on a primary basis, as well as the Amateur Radio Service and certain non-federal radiolocation systems on a secondary basis. The ARRL opposed the waiver on the grounds that the device has a significant potential to interfere with amateur stations and that the company is simply trying to avoid redesigning for the domestic market a device that was originally designed for military use overseas.
In comments filed in May 2008 (as described in a May 29, 2008 article on the ARRL Web site), the ARRL called on the FCC to deny the ReconRobotics waiver request, “either permanently or even temporarily,” calling on the Commission to require ReconRobotics to “initiate a rulemaking proceeding if it feels that the Part 90 or Part 15 rules governing analog devices are not sufficiently accommodating and should be changed, and could be changed consistent with interference avoidance. Repeatedly granting waivers for analog devices which do not meet the fundamental interference avoidance requirements of the existing rules is bad spectrum management and ill-serves the Amateur Service.” Despite opposing comments, the FCC granted the waiver request in the form of an Order (WP Docket No 08-63), subject to certain conditions.
In its Petition for Reconsideration, the ARRL stated that it is, of course, in favor of the development and use of technology in support of first responders and law enforcement efforts. The ARRL has no concern with the deployment by law enforcement personnel and first responders of video and audio surveillance devices per se; however, in its Petition, the ARRL asserted that in this instance the Wireless Bureau and the Public Safety and Homeland Security Bureau have granted the waiver precipitously and without due consideration of the interference potential and interference susceptibility of the subject devices. The ARRL Petition further argued that the Order failed to address a number of pertinent issues raised in submitted comments. The failure to do so characterizes the resulting Order as arbitrary and capricious.
The Petition also raised the issue of practical errors in the Order that would need to be corrected prior to any marketing of the equipment. For example, the FCC Order requires that Recon Scout transmitters be labeled with the following statement: “This device may not interfere with Federal stations (sic) operating in the 420-450 MHz band and must accept any interference received.” The ARRL Petition stated that this statement is inconsistent with, and does not sufficiently meet, the obligations imposed on the waiver in the text of the FCC’s Order. Those conditions include a specific statement that the device is on a secondary basis to all Federal users and licensed non-Federal users. The ARRL Petition demanded that the label be modified accordingly to read “This device may not interfere with federal and non-federal stations operating in the 420-450 MHz band and must accept any interference received.” Similarly, the ARRL requested that the required statement in the instruction manual be changed to read, “Although this transmitter has been approved by the Federal Communications Commission, there is no guarantee that it will not receive interference it must accept any interference received from federal or non-federal stations, including interference that may cause undesired operation.” In its Opposition, ReconRobotics agreed with these changes.
In addition, the FCC Order requires that the following statement be placed in the instruction manual: “Although this transmitter has been approved by the Federal Communications Commission, there is no guarantee that it will not receive interference.” The ARRL Petition argued that this language is insufficient; it should be modified to explain the conditions of operation more clearly. For instance, there is nothing in that language that explains to the user who experiences interference what that user’s expectations should be. Instead, the notice in the manual should read: “Although this transmitter has been approved by the Federal Communications Commission, it must accept any interference received from Federal or non-federal stations, including interference that may cause undesired operation.”
Finally, the ARRL Petition alleged that there is evidence of illegal marketing of the Recon Scout, which should, by itself, trigger a re-evaluation of the waiver.
The ARRL’s Reply to ReconRobotics’ Opposition
ReconRobotics opposed the ARRL’s Petition, saying that its opening paragraph was incorrectly styled as a Petition filed pursuant to Section 1.429 of the Commission’s rules. The ARRL’s Petition was so styled “because this proceeding, as the Commission chose to process it, was in the form of a notice and comment, docketed proceeding, in the nature of a rulemaking proceeding, at least in form.”
The ARRL asserts that ReconRobotics is incorrect in its assumption, as Section 1.429 does indeed permit petitions under these circumstances. The ARRL goes on to say that ReconRobotics is wrong when it stated in its Opposition that petitions filed under Section 1.429 “are necessarily acted on by the full Commission,” pointing out that Section 1.429 states that “[w]here the action was taken by the Commission, the petition will be acted on by the Commission. Where action was taken by a staff official under delegated authority, the petition may be acted on by the staff official or referred to the Commission for action.” The ARRL asserts that its Petition was indeed field correctly per Section 1.429 and that there is no procedural impropriety and was filed in a timely manner.
Even so, the ARRL will, if the FCC prefers, to allow to have its Petition considered under Section 1.106 of the rules, as “there is no difference which of the two Reconsideration rules is invoked in this case, because either way, the ARRL’s Petition timely sought administrative reconsideration of the Order which in this case was improvidently granted.” Saying that the FCC does not use the “Star Chamber” tactics urged by ReconRobotics, the ARRL points out that its Petition was “sufficiently styled, timely filed and procedurally firm. ReconRobotics’ protestations to the contrary are a red herring, intended to distract the Commission’s attention from the serious defects” that the ARRL pointed out in the FCC’s Order that granted the waiver.
ReconRobotics also argued that the ARRL’s Petition is “repetitive,” and as such, should be dismissed. The ARRL asserts that this argument is “illogical,” saying that the Order, issued under delegated authority “failed to address a number of significant arguments filed timely in the proceeding.” Since the ARRL raised such arguments in a timely manner -- and the delegated authority failed to address them in the Order -- the ARRL asserts that ReconRobotics’ objection to that failure cannot be dismissed as “repetitive.” The League pointed out in its reply that the Administrative Procedures Act does not permit an agency “to ignore substantive (and in this case, determinative) arguments and then dismiss an administrative appeal noting these omissions, on the basis that the arguments not dealt with by the agency were raised earlier by the administrative appellant.”
The ARRL raised the same arguments in comments it made and in its Petition for Reconsideration, but the FCC did not address them in the Order when it granted ReconRobotics its waiver, even though the FCC was obligated to do so: “This is a valid basis for seeking reconsideration and the ARRL fulfilled the obligations of both Section 1.429(c) and Section 1.106(b)(1). In its Opposition, ReconRobotics stated that “a petition that simply reiterates arguments previously considered and rejected shall be denied.” But the ARRL pointed out that this is precisely the opposite of what happened and that the FCC, upon issuing the Order, completely ignored the ARRL’s “decisional arguments” and conclusions in the Order were not explained by the contrary evidence that the ARRL presented: “An agency action is arbitrary and capricious if it is ‘not supported by substantial evidence’ in the record as a whole, including ‘whatever in the record fairly detracts from’ the agency’s conclusions.”
In its Petition, the ARRL requested that the FCC postpone implementing the Order. ReconRobotics called this request “infirm,” saying that the ARRL allegedly did not make the showings necessary to justify a stay. The ARRL points out that in its Petition, that it was proceeding as defined under the specific language of Section 1.102(b)(2) concerning FCC actions undertaken by delegated authority: “If a petition for reconsideration of a non-hearing action is filed, the designated authority may, in its discretion stay the effect of its action pending disposition of the petition for reconsideration.” The ARRL said it understands that a stay by the “designated authority” under this rule is discretionary and that the Deputy Bureau Chiefs who jointly issued the Order may decide not to issue it. But even so, there was “ample basis” in the ARRL’s Petition “to justify the grant of an administrative stay in this instance by the delegated authorities who issued the Order.”
Calling it “quite obvious,” the ARRL maintains that there is “irreparable harm” in allowing the marketing and deployment of an interference-causing device -- such as the Recon Scout -- that carries a label that is “substantially misleading to the customer and which operated in an ill-chosen band that will, as the ARRL has shown, result in interference to and from licensed users.” The ARRL wonders how that since ReconRobotics has yet to receive certification from the FCC for selling the Recon Scout, ReconRobotics can claim in its Opposition that it will “be harmed by the inability to market and sell this device in this frequency band [70 cm] rather than” what the ARRL calls a “more appropriate one.”
The ARRL believes that it “has more than amply demonstrated a likelihood of prevailing, pointing out that the FCC must rescind and reconsider the waiver on any number of points, “not the least of which is that the Commission has, sub silentio, granted a waiver of the Table of Frequency Allocations, Section 2.106, without admitting it has done so; without having been requested to do so by ReconRobotics, and without any justification stated for having done so.” As such, it is the ARRL’s position that the FCC is “obligated on this basis alone to revisit this matter and rescind the granted waiver.”
Pointing out that it is the public’s interest to delay implementing the Order, the ARRL asserts that the Recon Scout, an “interference-causing and interference susceptible device will be distributed with inadequate warnings to public safety users, who will be materially misled” by ReconRobotics. These users, the ARRL said, will not be aware that the Recon Scout “may be rendered inoperative by the presence of perfectly legal, co-channel Amateur Radio operation.”
In its Opposition, ReconRobotics “cavalierly” claims that any “incoming” interference is “ReconRobotics’ problem, not the Amateurs’.” Not so, the ARRL says: “That problem falls not to ReconRobotics, but to (1) the public safety users of the devices, since ReconRobotics will be out of the picture, post-point-of-sale, and (2) to the Amateur Radio operators who will either be the victims of the interference or he catalyst for the failure of the device, potentially jeopardizing the lives of first responders.” Since Section 1.102 of the Commission’s rules is discretionary, the ARRL maintains that it would be irresponsible for the Commission not to stay the Order.
The ARRL asserts that ReconRobotics has perpetrated “repeated and intentional marketing of the Recon Scout device” and presented “well-documented evidence” of this in its Petition: “All that ReconRobotics can muster in response to this is that this is an ‘enforcement mater’ and it has nothing to do with the grant of the waiver.” The ARRL believes that this has “everything” to do with the grant of the waiver, saying that the Commission granted the waiver based on the presumption that its deployment would be limited to certain classes of licensed users and the number of those users -- and of the devices -- would be limited.
“ReconRobotics has established by its conduct and its marketing structure that it cannot be relied on by the Commission to comply with any marketing conditions associated with this waiver,” the ARRL states. “Absent such assurance, the limits and conditions are meaningless and the acknowledged interference potential of these devices will go essentially unregulated and unchecked.”
In its Opposition, ReconRobotics argued that technical evidence submitted by the ARRL in its Petition does not rebut ReconRobotics’ “experimental” evidence that 420-450 MHz band is somehow required for the Recon Scout’s proper operation. The ARRL said that it is “satisfied” that its technical material adequately rebuts ReconRobotics’ contentions: “The point addressed by those studies, however, which is uncontested, is that the Order is devoid of any justification for the choice of frequency bands.”
The ARRL maintains that it has cited alternative frequency bands that would be perfectly suitable for the Recon Scout and its applications and which would not suffer the same incompatibilities that the 430-450 MHz band entails. “This is not a matter of Amateur Radio operators not wanting to share spectrum, as ReconRobotics asserts,” the ARRL claims. The Amateur Service shares the 420-450 MHz band compatibly with Government Relocation and has for years, as well as virtually all Amateur Radio allocations above 225 MHZ with other licensed services: “But the allocation decisions that resulted in those sharing decisions have always been adjudicated via the normal allocation process. Thos allocation decisions were not made by rule waivers granted to single -- and as here, irresponsible -- individual manufacturers, solely for the manufacturer’s own convenience.”
In its Petition, the ARRL suggested alternate language to be used in labeling on the Recon Scout [see “Background,” above]. ReconRobotics, in its Opposition, did not oppose the “rather obvious need to modify the labeling requirements that are insufficient to convey to the user the operating conditions that the Commission has placed on the devices, to the detriment of the hundreds of thousands of licensed Amateur users of the 420-450 MHz band.” On this matter alone, the ARRL says that the FCC should use the language provided by the ARRL and postpone implementation of the Order “while the Commission fixes” the labeling issue.
It is ReconRobotics’ claim that there was no “allocation by waiver” concerning the Recon Scout because “the US Table of Allocations lists Private Land Mobile for the 420-450 MHz band” and because “Part 90 of the Commission’s rules also lists the band.” ReconRobotics also claims that Recon Scout users will be required to obtain Part 90 licenses. In making this argument, the ARRL maintains that ReconRobotics is “guilty of a severe misunderstanding of the Table of Allocations. There is no domestic allocation for Public Safety land mobile services anywhere in the 430-450 MHz band.”
It is the ARRL’s position that the Commission erred in granting a waiver only of Part 90 rules “because what was necessary was a waiver of Section 2.106 of the Commission’s rules, the Table of Allocations...Spectrum allocation by permanent, nationwide waiver to one manufacturer is contrary to the allocation process used by the Commission in the past, and the Commission has not enunciated a valid reason for departing from past spectrum management practice.”
The ARRL alleges that the FCC did not consider how inappropriate 420-450 MHz -- selected by ReconRobotics -- was and says such oversight must be addressed in concert with recent actions by the Commission’s Office of Engineering and Technology (OET): Order, Octatron and Chang Industry, Inc, Waiver of the Part 15 Regulations, DA 10-453, ET Docket No 05-356, released March 22, 2010, and the Order, In the Matter of Remotec, Inc, DA 10-454, released March 18, 2010. It is the ARRL’s position that these two decisions -- Octatron and Chang, and Remotec -- “reveal the inadequacies of the [ReconRobotics’] Order in this case.” The Commission never inquired of ReconRobotics what the interference range of its device was toward potential licensed radio services; to date, that information is not in the record. “Yet, a waiver for ReconRobotics’ device , which uses a higher power than the Octatron and Change device, was granted...Octatron and Chang were denied a waiver because they made no showing that their device would not cause interference to incumbent services in the 902-928 MHz band. ReconRobotics made no such showing, but were given a grant anyway.”
In the ReconRobotics’ Order, the ARRL asserts that the FCC did not rely on data, “but only on admittedly unsupported assumptions about interference potential to the Amateur Service. It made no analysis of the interference susceptibility of the device to signals from a nearby Amateur Radio transmitter or the effect of first responders from malfunction of the device when it is deployed. There was an inadequate factual predicate for the requested relief, and no analysis of available alternatives that would have necessitated denial of the waiver.”
In its final point, the ARRL maintains that ReconRobotics has “numerous instances of a lack of control” when it comes to its products, and the waiver -- with a basis of “interference avoidance by scarcity” and limits on deployment based on marketing limits -- “cannot be allowed to stand in the light of day.” Saying that ReconRobotics’ unwillingness to address these issues due to “an ongoing enforcement proceeding” involving the Recon Scout is “telling,” the ARRL admonishes the Commission to “not have the same head-in-the-sand option” and calls upon the FCC to “address on reconsideration not only the impact of the apparently numerous instances of illegal marketing of this device by ReconRobotics, it must also enunciate, in light of those violations, the basis for its assumption looking forward that the marketing limitations imposed in the Order will be adhered to.”
The ARRL avers that ReconRobotics “has given in this proceeding no assurance whatsoever that it can b relied on to comply (or, in view of its use of independent resellers, that it has the ability to do so), and all of the available evidence points to the contrary conclusion.”
As such, the ARRL asked the Commission to “reconsider, rescind and stay the ReconRobotics waiver and the effectiveness of the Order” in accordance with the ARRL’s Petition for Reconsideration.