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It Seems To Us: We Win In Court!

06/30/2008 On Friday, April 25 the United States Court of Appeals for the District of Columbia Circuit confirmed what the ARRL has been saying for years about how the FCC was handling the BPL interference issue: FCC prejudice tainted the rulemaking process.

In fact, the FCC's mishandling of the issue was so egregious that the Court took an unusual step: it did not defer to the Commission's presumed expertise on a highly technical issue.

The Court of Appeals found that the FCC violated the Administrative Procedure Act by not disclosing in full the staff studies on which the Commission relied. Writing for the three-judge panel that heard American Radio Relay League, Incorporated v. FCC and USA, the ARRL's petition for review of the FCC's Orders in ET Docket No. 04-37, Circuit Judge Judith W. Rogers said: "It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment…there is no APA precedent allowing an agency to 'cherry-pick' a study on which it has chosen to rely in part….The League has met its burden to demonstrate prejudice by showing that it 'ha[s] something useful to say' regarding the unredacted studies…that may allow it to 'mount a credible challenge' if given the opportunity to comment….Under the circumstances, the Commission can point to no authority allowing it to rely on the studies in a rulemaking but hide from the public parts of the studies that may contain contrary evidence, inconvenient qualifications, or relevant explanations of the methodology employed….no precedent sanctions such a 'hide and seek' application of the APA's notice and comment requirements." [Emphasis added.]

In a concurring opinion, Circuit Judge David S. Tatel wrote: "[I]n this very case the Commission redacted individual lines [emphasis in original] 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' [emphasis added]…."

The Court also found that the Commission failed to justify its decision to apply an "extrapolation factor that was designed to accommodate technologies different in scale, signal power, and frequencies used" to Access BPL and that it "summarily dismissed…empirical data that was submitted at its invitation." The Court found that the FCC's Reconsideration Order "…provides neither assurance that the Commission considered the relevant factors nor a discernable path to which the court may defer."

While the Court did not agree with us on every point, it found that the FCC's decision-making process was seriously flawed. The Court concluded, "On remand, the Commission shall afford a reasonable opportunity for public comment on the unredacted studies on which it relied in promulgating the rule, make the studies part of the rulemaking record, and provide a reasoned explanation of its choice of an extrapolation factor for Access BPL systems." In explaining its choice of an extrapolation factor the Commission must either "provide a reasoned 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 [three published studies suggesting that an extrapolation factor of 20 dB per decade may be more appropriate -- Ed.], or adopt another factor and provide a reasoned explanation for it."

You can read the entire decision in American Radio Relay League, Incorporated v. FCC and USA at pacer.cadc.uscourts.gov/common/opinions/200804/06-1343-1112979.pdf.

The Court's decision is a tremendous victory for radio amateurs and other licensed users of the radio spectrum -- indeed, for anyone who cares about the integrity of the federal administrative process. Yet, the remand does not guarantee that the FCC will correct its errors. We face another round of technical arguments. No doubt the FCC's technical staff, many of whom want to do the right thing, will remain under heavy pressure to ignore the laws of physics and give preference to wishful thinking once again. When the FCC reopens the BPL proceeding as the Court has ordered, we must leave no room for these technical issues to be settled on anything other than technical grounds. There's more work to do!

While all this was going on, the ARRL technical staff -- principally Ed Hare, W1RFI -- was working quietly with the BPL industry, persuading them that it was in their best interest to fix the interference problem. To their credit, the leading companies have taken the problem seriously and have gone beyond what the FCC rules require. But it took great effort, including our frontal assault on the flawed FCC proceedings, to get their attention.

The responsible BPL companies have shown they can do what's necessary to avoid interfering with Amateur Radio. FCC rules requiring all BPL companies to take these steps will protect them from irresponsible competitors.

BPL received another blow on May 1 when it was announced that the largest BPL deployment to date, in Dallas, would not be used to offer Internet service but would be used only to monitor the power distribution network. The Associated Press report began, "Goodbye, broadband over power lines. We hardly knew you." Thus the marketplace has added its verdict to that of the Court of Appeals.

This good news notwithstanding, the ARRL will not rest until the FCC rules give licensed radiocommunication services the protection they are entitled to under international agreements and federal law.

Even as we celebrate these dual verdicts, we cannot afford to become complacent. Our access to the radio spectrum is much too important to allow us that luxury.

David Sumner, K1ZZ



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