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 Previous: Measure Makes Amateur Radio Part of Emergency Communications Community |  Next: The K7RA Solar Update |
NEWINGTON, CT, Oct 4, 2006 -- The ARRL Executive Committee is expected this weekend to ratify plans to appeal in federal court certain aspects of the FCC's Part 15 rules governing broadband over power line (BPL) systems. Assuming the EC signs off on the strategy, the League will file a Notice of Appeal by October 22 with the US District Court of Appeals -- DC Circuit. ARRL Chief Executive Officer David Sumner, K1ZZ, said the League went forward with its appeal plans only after considering the effect on licensed spectrum users of letting the BPL rules stand.
"This decision was made after careful review of the FCC's October 2004 BPL Report and Order (R&O) and of the August 2006 Memorandum Opinion and Order (MO&O) that dealt with petitions for reconsideration," said Sumner, who addressed ARRL's concerns with the FCC's BPL rules in his "It Seems to Us . . ." editorial in October QST.
New Rule Limits Interference Liability to Mobile Stations
Several reconsideration petitions of the initial R&O -- including one from ARRL -- called on the FCC to strengthen rules aimed at protecting licensed radio systems from BPL interference. Instead, in a new rule only revealed after the FCC made the MO&O public, the FCC limited the extent to which an unlicensed, unintentional radiator has to protect a licensed mobile station.
The new rule, §15.611(c)(1)(iii), provides that BPL operators only have to reduce emission levels below established FCC permissible limits by 20 dB below 30 MHz and by 10 dB above 30 MHz -- even if that's not enough to resolve harmful interference complaints. The FCC called these levels "modestly above the noise level."
According to ARRL Laboratory Manager Ed Hare, W1RFI, these levels would be some 25 dB higher than the median values for man-made noise in residential areas and up to 40 dB higher than the minimum values hams use for reliable communication.
What the FCC has done with respect to licensed mobile services "should strike fear into the hearts of those who rely on public safety communications," Sumner added, especially since the rule requires BPL operators to do even less above 30 MHz than at HF.
ARRL Challenging Extrapolation Factor Decision
The Commission also declined to adjust the 40 dB per decade "extrapolation factor" applied to measurements performed at distances from power lines other than those specified in Part 15. Sumner says this is an important technical point because the existing Part 15 rule causes test results to underestimate actual field strength. In their petitions for reconsideration, the ARRL and others demonstrated that the 40 dB per decade extrapolation factor was wrong and that a figure closer to 20 dB per decade was appropriate.
Making Matters Worse
"The MO&O just made matters worse," Sumner said, "because the FCC simply cast aside any new information that did not support its original, flawed conclusion and dismissed it without explanation." He called the Commission's stand on the 40 dB per decade rule "clearly, demonstrably and inarguably wrong."
Sumner contends the rule change in the MO&O regarding mobile stations contravenes the International Radio Regulations and the Communications Act of 1934. "The FCC has, in effect, tried to redefine harmful interference," he said. "It can't do that. The Commission doesn't have the authority to do that, and we're going to demonstrate that to the Court of Appeals." Sumner said the FCC's action is "exactly the kind of administrative decision the courts of appeal love to overturn."
He said the principles that the FCC appears to be following for the first time -- if applied generally -- represent an abuse of licensees' rights. "It's unacceptable that the FCC would reduce the rights of its licensees in favor of unlicensed, unintentional emitters," he said. "Remember that 'unintentional emission' is just another term for 'spectrum pollution.'"
No Free Pass
Sumner made it clear that the League is not suing BPL providers for causing interference, nor suing the FCC for failing to enforce its own rules against harmful interference. "We are not satisfied with the level of attention the Commission is paying to existing cases of BPL interference, but this is not the time to pursue that in federal court," he said.
He said the ARRL will demonstrate in court that the FCC's administrative process was flawed and resulted in rules that go beyond its mandate by reducing the rights of its licensees and providing a free pass to spectrum polluters.
"The court is not going to rewrite the rules," Sumner explained. "The court can make the Commission go back to the drawing board and re-decide them, however." He said the League also wants the court to formally recognize that the FCC's failure to reconsider its initial decision regarding the 40 dB per decade extrapolation factor is "indefensible."
While these aspects of the new rules precipitated the decision to appeal, Sumner said, the arguments the League puts forward in its court filing may touch on other matters as well.
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