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FCC Has Done "Literally Nothing" to Comply with Court Ruling

03/04/2009

On February 25 -- 10 months to the day that the US Court of Appeals for the District of Columbia Circuit released its decision on the ARRL's Petition for Review of the FCC's Orders adopting rules governing broadband over power line (BPL) systems -- ARRL General Counsel, Chris Imlay, W3KD, sent a letter to FCC Acting Chairman Michael Copps, requesting that the Commission "revisit the BPL rules without further delay, and to comply with the obligations placed on it by the Court." In its April 2008 decision, the Court agreed with the ARRL on two major points and remanded the rules to the Commission. According to Imlay, "to date, literally nothing has been done by the Commission to comply with these instructions."

In its 2008 ruling, the Court did not vacate the Commission's 2004 BPL rules. Imlay said that the ARRL did not request the Court do so, as the current Part 15 rules governing BPL, "inadequate though they are, were slightly preferable to the general application of the Part 15 rules to BPL systems in terms of interference prevention." Imlay said that the FCC's "inaction" since the remand has "served neither BPL deployment, nor Amateur Radio, well."

Imlay pointed out to Copps that without such rules protecting the Amateur Radio Service, Amateur Radio operators have no protection from the interference from BPL systems: "While there are configurations of BPL systems which can adequately reduce the probability of interference ex ante and without significant constraints on BPL deployment, the current BPL rules do not mandate the use of these interference prevention mechanisms."

The Court demanded two things from the FCC in its ruling: release the redacted studies that the Commission relied on for its BPL findings, and provide a "reasoned justification" for an extrapolation factor of 40dB per decade, or adopt another factor and provide a reasoned explanation for it.

Regarding the redacted studies, the Court ordered the Commission to "make available for notice and comment the unredacted 'technical studies and data that it has employed in reaching [its] decisions' [with respect to BPL]...and shall make them part of the rulemaking record." The FCC used five substantially redacted field studies that the Commission's Office of Engineering and Technology (OET) staff conducted of BPL field trials. To date, these unredacted studies have not been released.

The Court also ordered the FCC to "either provide a reasonable justification for retaining an extrapolation factor of 40 dB per decade for access BPL systems sufficient to indicate that it has grappled with the 2005 studies, or adopt another factor and provide a reasoned explanation for it." The 2005 studies refer to those conducted by the Office of Communications, the FCC's counterpart in the United Kingdom. The ARRL submitted these studies to the Court, along with the League's own analysis showing that an extrapolation factor closer to 20 dB per decade was more appropriate, as part of the record in its petition for reconsideration of the FCC's BPL Order. The Court said that the FCC "summarily dismissed" this data in a manner that "cannot substitute for a reasoned explanation." The Court also noted that the record in the FCC proceeding included a study by the National Telecommunications and Information Administration that "itself casts doubt on the Commission's decision."

The extrapolation factor pertains to the rate at which radiated emissions from power lines carrying access BPL decay with distance from the power lines, and therefore the extent to which the radiated energy from the lines can interfere with licensed radio services, such as Amateur Radio.

Imlay said that since its 2004 rulemaking in Docket 04-37, BPL technology has "evolved," and the opportunity now presents itself to craft revised BPL rules that address the "actual interference potential of BPL systems while enabling BPL as a broadband delivery or grid management technology." He reminded Copps that eight months ago, ARRL President Joel Harrison, W5ZN, and ARRL Chief Executive Officer David Sumner, K1ZZ, met with representatives from the FCC's OET with a plan for BPL. "The revised regulations suggested by ARRL would be sufficient to reduce the potential interference to the point that it would be practical to address such instances on a case-by-case basis," Imlay said. "Compliance is achievable with present BPL technology without significant limitation on BPL deployment."

Calling the Commission "long overdue" in complying with the Court's "very clear and specific" instructions, Imlay said that the Commission's inaction "cannot be allowed to continue. It is necessary to commence further proceedings in ET Docket 04-37 after making the requisite disclosures, and we respectfully urge the Commission to do so without further delay."

Imlay reminded Copps that on his inauguration day earlier this year, President Barack Obama placed a series of goals on the White House Web site. "Among these," Imlay said, "was the following: 'Restore Scientific Integrity to the White House: Restore the basic principle that government decisions should be based on the best-available, scientifically valid evidence and not on ideological predispositions.' The Commission has the opportunity to implement this goal in this Docket proceeding."



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