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 Previous: Amateur Radio and ARES Assist Flood Victims in Central Texas |  Next: ARRL In Action: What Have We Been Up To Lately? |
By David Sumner, K1ZZ
July 1, 2007
On May 17, attorneys representing the ARRL filed the initial brief in support of our petition for judicial review of the FCC's flawed rules governing Access Broadband over Power Line (BPL) systems. This is an important step on the road to what we hope will be a favorable decision by the US Court of Appeals for the District of Columbia Circuit.
If you tuned in late, in April 2003 the FCC opened a Notice of Inquiry (NOI) to consider amending its Part 15 rules as they apply to BPL systems. There are tens of millions of unlicensed "Part 15 devices" in daily operation. By and large, they do not represent a serious interference threat to licensed radio services because they operate for short duration, using very low power on limited frequencies. BPL is different. BPL devices may operate continuously, emitting energy across a wide range of the high-frequency (HF) radio spectrum from unshielded and unbalanced power lines. To its credit, the FCC recognized that its existing rules did not adequately address such devices. Much to its discredit, then-Chairman Michael Powell stated that "The Commission should be a cheerleader" and should do everything it could to encourage deployment of BPL technology, even though the Commission at the time knew very little about BPL.
Despite responses to the NOI that provided ample reason to proceed cautiously, less than six months after the deadline for reply comments the FCC issued a Notice of Proposed Rulemaking (NPRM) on BPL. Time and time again in the NPRM the FCC sought to reassure licensees that it remained firmly committed to the bedrock principle that licensed services were entitled to protection: "We believe that Access BPL systems can operate successfully under the non-interference requirements of the Part 15 rules. Under these rules, operators of Access BPL systems will be responsible for eliminating any harmful interference that may occur.... Notwithstanding compliance with the Part 15 emission limits, we wish to emphasize that Access BPL would also operate under our Part 15 non-interference conditions. Thus, operations must cease if harmful interference to licensed services is caused."
Barely eight months later, the FCC was ready with its conclusions and adopted a Report and Order in the proceeding. The new rules fell far short of ensuring that BPL deployment would be limited to systems with a reasonably low potential for causing harmful interference to licensed radio services. Accordingly, the ARRL (among others) filed a petition for reconsideration of several aspects of the new rules.
In contrast to its earlier haste, the FCC took a year and a half to act on the petitions for reconsideration -- and then made matters worse. Most strikingly, the FCC abandoned its earlier "bedrock" position and adopted a new rule that allows BPL system operators to interfere with licensed mobile stations. That, along with other clear deficiencies in the Commission's handling of the BPL issue, led the ARRL -- with support from the National Association of Broadcasters and the Association for Maximum Service Television -- to seek judicial review of FCC actions that we believe to be unlawful.
The brief filed on May 17 sets out four ways in which the FCC failed to fulfill its legal obligations.
First, the Commission reversed 70 years of consistent application of Section 301 of the Communications Act without explaining why, and without even acknowledging that it was doing so. The FCC compounded its error by asserting -- belatedly and utterly erroneously -- that BPL devices do not fall within Section 301 at all. The brief sets out the history of how the FCC has treated unlicensed devices since they were first authorized in 1938 and demonstrates that the new rules change the bundle of rights and protections that radio licensees enjoy without a shred of the "reasoned analysis" that legal precedent requires.
Second, the Commission failed to discuss or disclose significant information in the record that potentially contradicts its key interference findings. Not only did it withhold its internal studies until it was too late to comment, it still has not released portions of the studies that may not support its conclusions on the grounds that they are "internal communications that were not relied upon in the decision making process." In the words of the brief, "If the Commission's claim of nonreliance on the redacted material is taken at face value, then its failure to consider the contrary evidence from its own engineers' field tests strongly suggests a willful blindness toward any information not in accord with its preferred outcome. If, as seems more likely, the Commission actually considered and rejected the information contained in the redacted portions of its studies, then it had a duty to disclose the information and reasons for rejecting it. Either way, the FCC acted improperly."
The Commission's penchant for ignoring contrary evidence is illustrated even more vividly with regard to how quickly RF emissions are assumed to decay as one moves away from the source. This is important because if the signal is assumed to decay more quickly than it really does, the interference potential of the emissions will be underestimated. The FCC claimed that "many parties" presented experimental data supporting a 40 dB per decade (10 times increase in distance) rate. In fact, there is no such evidence in the record -- and empirical evidence supporting a lower number was ignored. The FCC failed to consider a sliding-scale alternative proposed by the ARRL that would have avoided the logically indefensible situation that now exists in the rules: the extrapolation factor is 20 dB/decade at 30.001 MHz and 40 dB/decade at 29.999 MHz.
Finally, the FCC failed to limit BPL to the 30-50 MHz frequency range despite evidence that doing so would have eliminated the problem of interference to long-distance HF communications without exacerbating the situation for public safety licensees.
Our statement of the case concludes, "ARRL is not trying to stop the deployment of BPL. ARRL and other commenters provided the FCC with alternative proposals -- ones that have been demonstrated to work in the real world -- that would have allowed BPL to prosper without harm to licensees or to Congress's licensing regime. What is perhaps most unfortunate about the FCC's radical actions in this case is that they were entirely unnecessary."
We look forward to reading the FCC's response, which is due on July 2.
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