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ARRL Seeks Court Action to Compel FCC to Comply with Ruling

06/26/2009

On June 24, 2009, the ARRL filed a petition with the United States Court of Appeals for the District of Columbia Circuit asking the Court to order the Federal Communications Commission to comply with the Court's 2008 decision that remanded the FCC's ruling on Access BPL for further action.

In its Petition for a Writ of Mandamus, the ARRL asks that the Court "order the Commission to comply with the terms of the Court's mandate by (1) soliciting comment on the unredacted studies placed in the rulemaking record, and (2) providing a reasoned explanation of its choice of an extrapolation factor for Access BPL (or issue a further notice of proposed rulemaking proposing a different extrapolation factor), within sixty days."

"What's at issue is the fact that after over a year the FCC has not complied with the Court's order," said ARRL Regulatory Information Manager Dan Henderson, N1ND. "The FCC needs to ask the public to comment on the scientific studies conducted by the FCC and on which they relied in their BPL decision. It also must either offer a reasoned explanation, based on the scientific studies already in the FCC's record, for its determination of the rate at which radiation from medium voltage power lines carrying BPL decays with distance from the power line, or issue a new Notice of Proposed Rule Making and seek comment on an appropriate standard."

The Court of Appeals issued its decision April 25, 2008 and its mandate on June 13, 2008. ARRL's petition asserts: "By March 31, 2009, the Commission had taken no action with respect to the disclosure of the unredacted scientific studies and had not therefore solicited public comment on the unredacted studies. Petitioner, therefore, filed a Freedom of Information Act request with the Commission seeking the unredacted versions of the studies that the Court ordered be included in the rulemaking record, and about which an opportunity for comment was to be provided by the Agency."

ARRL Chief Executive Officer David Sumner, K1ZZ, said that "We have been waiting patiently for the FCC to fulfill its obligations under the Court of Appeals decision, but after more than a year, it's clearly past time for the Commission to act. Thanks to the release of the unredacted staff studies in response to the ARRL's most recent FOIA request -- a request that should not have been necessary for us to make -- we finally know what the FCC withheld from public view back in 2004 and what they now must deal with in order to resolve the regulatory uncertainty that continues to hang over BPL. We are hopeful that under its new leadership, the FCC will get back on track and will revise its rules governing BPL interference to be consistent with the technical record and sound science."

On May 1 of this year, the Commission released the unredacted studies without comment or notice. As the ARRL's petition continues, "To date, no public notice of that action has been given and no further action has been taken by the Commission with respect to the provision of an opportunity for the public to comment on the unredacted studies."

Henderson explained that "the release of the unredacted studies is only a partial fulfillment of the Circuit Court's decision. The ARRL's position is that further delay is not warranted by any reasonable, factual standard. There is precedent in law that 'a reasonable time for agency action is typically counted in weeks or months, not years.' It is 14 months since the Court's decision, and still the FCC has no timeline to meet its mandated obligations."

The ARRL is asking that the Court order the Commission to comply with the Court's order within 60 days. The petition states: "Given the simplicity of the Commission's compliance with the two components of the Court's Mandate on remand and the amount of time that the Commission has already taken following the issuance of the Mandate, the Court need not be concerned with the question of how much more time is needed for the Commission to complete its tasks. Sixty days is more than enough to solicit public comment on the unredacted studies and to justify, if it can, the extrapolation factor, or to reopen the rulemaking proceeding in order to determine a different, appropriate extrapolation factor."



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