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By David Sumner, K1ZZ
ARRL Chief Executive Officer
January 1, 2007
Let's get right to the point: The ARRL is suing the Federal Communications Commission. Here is what led to this decision, why it is the right thing to do, and how you can help.
As regular readers of this page already know, under former Chairman Michael Powell the FCC cast itself in the role of cheerleader for an over-hyped technology known as Broadband over Power Line, or BPL. BPL deliberately puts radio frequency (RF) energy on unshielded power lines. As anyone knows who understands RF, this is likely to interfere with nearby radio receivers using the same frequencies.
The radio spectrum is a priceless asset. BPL, on the other hand, is an unintentional emitter. Any RF energy that a BPL system radiates is simply spectrum pollution.
Through careful frequency selection and design, BPL systems can avoid interfering with radio services. Unfortunately, rules for BPL adopted by the Powell FCC in 2004 allow poorly designed BPL systems operating on inappropriate frequencies -- including amateur bands -- to be deployed. The ARRL and others petitioned the FCC to reconsider these rules and to give better protection against BPL interference to licensed radio services.
With Powell's departure and the appointment of Kevin Martin as Chairman, we thought that technical evidence once again would trump wishful thinking at the FCC. But it was not to be. The FCC's reconsideration decisions, adopted on August 3, did not improve things. When the Memorandum Opinion and Order (MO&O) was released a few days later, we couldn't believe it -- they had made matters worse!
A new FCC rule is aimed directly against mobile stations
-- in all services, not
just amateur. The new rule, §15.611(c)(1)(iii), exempts BPL
operators from having to do anything to correct interference to mobile
operations other than to notch emissions to a level 20 dB (below
30 MHz) or 10 dB (above 30 MHz) below the absolute limit
specified elsewhere in the rules. Here's a direct quote
from the FCC (emphasis added):
Where an Access BPL operator implements such notching, we will not provide further protection to mobile operations, nor will we require the operator to resolve complaints of harmful interference to mobile operations by taking steps over and above implementing the "notch."
Consider what this means. If a BPL system blankets an area with interference, the FCC will require nothing of the BPL system operator beyond putting a 10 or 20 dB notch on the frequency used by a complaining mobile operator.
ARRL measurements and studies show that this leaves the interference 25 dB higher than the median values for man-made noise in residential areas and up to 40 dB higher than the minimum values that amateurs routinely use for reliable communication. And as for other services, if a BPL system prevents a dispatcher from reaching a fire truck or ambulance -- well, that's just too bad.
This isn't just a proposal. It's a rule that is now in effect. With one stroke, the rights of FCC licensees have been subordinated to those of spectrum polluters! Never before has an unintentional emitter been given a free pass to interfere with licensed radio services.
Some well-meaning people tell us, "Why worry? As a means of delivering broadband services to consumers, BPL is an inferior technology. According to the FCC's own figures, the BPL industry has managed to reach fewer than 5000 customers nationwide. BPL is failing in the marketplace, as well it should."
Here's the problem. Even if BPL disappears from the scene tomorrow, the FCC's preference for unlicensed, unintentional emitters over the interests of its licensees will remain on the books. Bad rules left unchallenged will lead to even worse rules later.
The FCC was heading in the wrong direction under Michael Powell. It's continuing in the wrong direction under Kevin Martin. Reasoned technical arguments backed up by overwhelming evidence have not altered the FCC's errant course. There was only one thing left that we could do: appeal in federal court. After carefully considering the costs and consequences, the ARRL Board of Directors concluded that was what we must do.
So, on October 10, 2006 the law firm of Wilmer Cutler Pickering Hale and Dorr LLP (WilmerHale) joined ARRL General Counsel Chris Imlay in filing a Petition for Review on behalf of the ARRL in the United States Court of Appeals for the District of Columbia Circuit.
We are not alone. The Association of Maximum Service Television (MSTV) and the National Association of Broadcasters (NAB) have decided to intervene in support of the ARRL. Their joint motion states, "MSTV and NAB believe that the regulations under review are arbitrary, capricious, and contrary to law, and will adversely impact their members by, among other things, permitting unlicensed users of radio spectrum to interfere with licensed uses of the spectrum."
The Court of Appeals will not substitute its judgment for the reasoned decision-making of an expert agency. But this long-established principle does not give agencies such as the FCC carte blanche. In another recent case, a panel of this Court had this to say about another federal agency: "We therefore owe no deference to [the agency's] purported expertise because we cannot discern it." When it reviews the FCC's BPL decisions we expect the Court to reach a similar conclusion.
Mounting a serious challenge to a federal agency is expensive. Attorneys who specialize in this work must be retained -- and the attorneys at WilmerHale are the best in the business. A careful review of the FCC's records must be performed. Complex technical issues must be made understandable to a panel of judges who are not telecommunications experts. Exhibits must be prepared. Arguments must be selected and fine-tuned.
Your Board of Directors has decided to take these steps to protect you and your ability to use Amateur Radio frequencies. Your financial support of the Spectrum Defense Fund is vital to help fund this appeal. If you share our sense of outrage at the FCC's bending its rules to accommodate a polluter of the radio spectrum at the expense of the licensees it is supposed to protect, please express your support of the ARRL Board's decision with a generous contribution. Visit www.arrl.org/forms/fdefense for more information and a donation form.
