FCC Releases Unredacted BPL Case Studies after ARRL FOIA Request
Earlier this month, the FCC released the redacted portions of the studies on which they relied with regard to its Broadband over Powerline (BPL) rulemaking in 2004 after ARRL filed a Freedom of Information Act request on March 31 for the studies. In October 2007, the US Court of Appeals for the District of Columbia Circuit heard ARRL's case against the Commission, stating, among other things, that the FCC not only withheld the internal studies until it was too late to comment, but had yet to release portions of studies that may not support its own conclusions regarding BPL. The FCC claimed that the studies were "internal communications" that it did not rely upon in reaching its decision to adopt the BPL rules. In its April 2008 ruling, the Court ordered the FCC to release the studies.
In its decision, the Court agreed with the ARRL that the FCC had failed to comply with the Administrative Procedure Act (APA) by not fully disclosing for public comment the staff studies on which it relied and that "there is no APA precedent allowing an agency to cherry-pick a study on which it has chosen to rely in part." Writing for the three-judge panel of Circuit Judges Rogers, Tatel and Kavanaugh, Judge Rogers summarized in the Court's decision that "The Commission failed to satisfy the notice and comment requirements of the Administrative Procedure Act ('APA') by redacting studies on which it relied in promulgating the rule and failed to provide a reasoned explanation for its choice of the extrapolation factor for measuring Access BPL emissions." The Court concluded that "no precedent sanctions such a 'hide and seek' application of the APA's notice and comment requirements."
Judge Tatel agreed with Judge Rogers, saying, "[I]n this very case the Commission redacted individual lines from certain pages on which it otherwise relied...there is little doubt that the Commission deliberately attempted to 'exclude [ ] from the record evidence adverse to its position'"
After almost a year after the Court's decision, the FCC had done "literally nothing" about releasing the complete studies. When President Obama came into office in January 2009, new Freedom of Information Act (FOIA) guidelines were put in place. Using these new guidelines, the ARRL filed an FOIA request on March 31 for the studies. The FCC responded to the FOIA request and released the unredacted studies the last week of April.
In one study concerning Main.net's BPL system, the FCC found that the system exceeded Part 15 limits, but referenced a comment provided by a BPL provider's Chief Technical Officer: "[i]f distance scaling were based on distance to the pole ground wire rather than the nearest part of the BPL system, measurements would have passed with 1 dB margin at the selected quasi-peak measurement location." The FCC redacted a statement made by its own FCC staff that labeled the CTO's comment as "invalid," yet retained the comment.
Another unredacted study from 2003 in Allentown, Pennsylvania, plainly showed that BPL was not a point source, noting: "NOT A POINT SOURCE. Emissions exhibit no noticeable decay 230 m down from the coupler." In the redacted version, this information was deleted, but all other information, including a graph, was left intact.
A study regarding Access BPL showed the same thing, but all information had been redacted from the file, leaving just a blank page. The unredacted study concluded that "The tested overhead PLC devices do not act as point sources. Emission from line shows virtually no decay 230 m from coupler. Differential two-wire signal injection affects the polarization of radiated emissions from overhead devices."
"Comparing the redacted and unredacted documents will take some time," ARRL Chief Executive Officer David Sumner, K1ZZ, said, "but these three sets of pages...show exactly what prompted Judge Tatel to say what he did. We are continuing to analyze all the documents and we'll see just what has been going on."