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ARRL General Bulletin ARLB015 (2007)

ARLB015 ARRL Files Federal Appeals Court Brief in Petition for 
Review of BPL Rules

QST de W1AW  
ARRL Bulletin 15  ARLB015
From ARRL Headquarters  
Newington CT  May 30, 2007
To all radio amateurs 

ARLB015 ARRL Files Federal Appeals Court Brief in Petition for 
Review of BPL Rules

The ARRL has filed a federal appeals court brief outlining its case
and requesting oral arguments in its petition for review of the
FCC's broadband over power line (BPL) rules. The League has
petitioned the US Court of Appeals for the DC Circuit to review the
FCC's October 2004 Report and Order (R&O) in ET Docket 04-37 and
its 2006 Memorandum Opinion and Order. In its brief filed May 17,
the ARRL contends, among other things, that the FCC's actions in
adopting rules to govern unlicensed BPL systems fundamentally alter
the longstanding rights of radio spectrum licensees, including
Amateur Radio operators.

"For the first time ever, the FCC has permitted new unlicensed
devices to operate in spectrum bands already occupied by licensees,
even if the unlicensed operations cause harmful interference to the
licensees," the League said in stating its case. "The orders under
review reverse nearly seven decades of consistent statutory
interpretation and upset the settled expectations of licensees
without so much as acknowledging the reversal, let alone justifying

The ARRL argues that the FCC's approach to adopting rules to govern
BPL flies in the face of Section 301 of the Communications Act,
which requires that operators of devices that emit radio frequency
energy first obtain an FCC license. "For years, the FCC has
consistently read Section 301 to apply to unintentional radiators,
such as BPL devices, and has expressly embodied that interpretation
in its rules," the League's brief recounts.

The Commission then compounded its error by asserting that BPL
devices do not fall within Section 301 at all, the League said.

The ARRL contends that the FCC orders under review "jeopardize the
license rights of ARRL's members and other license holders by
authorizing providers of a new device -- Access Broadband over Power
Lines, or 'BPL' -- to send radio signals across the electric grid in
the frequencies the license holders occupy, but without having to
obtain an FCC license."

The League's brief further asserts that the FCC "has failed to
discuss or disclose significant information in the record that
potentially contradicts its key interference findings." The
Commission not only withheld its internal studies until it was too
late to comment, the ARRL alleges, but has yet to release portions
of studies that may not support its own conclusions.

The ARRL wants the appeals court to determine if the Commission
acted in an arbitrary and capricious manner for not disclosing
"significant information that potentially contradicts its key
interference finding," the League said in its brief.

The League also has taken issue with what it argues is the FCC's
"arbitrary and capricious" adoption of a BPL emission measurement
standard that's unsupported by the record in the proceeding and
ignores contrary evidence.

The ARRL brief asserts that, for the first time ever, the FCC "has
authorized the operation of unlicensed devices that it concedes
interfere with licensed devices" and has declared that such devices
"may continue operating even where proven to cause interference."

The FCC, ARRL contends, has concluded that BPL's acknowledged
interference risks are manageable, but it bases that conclusion --
which ARRL calls "the linchpin of the challenged orders" -- on FCC
studies the Commission has declined to make public in unedited form.

The FCC's response to the League's brief is due July 2.


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