Court Finds FCC Violated Administrative Procedure Act in BPL

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SB QST @ ARL $ARLB008
ARLB008 Court Finds FCC Violated Administrative Procedure Act in BPL
Decision

ZCZC AG08
QST de W1AW 
ARRL Bulletin 8  ARLB008
From ARRL Headquarters 
Newington CT  April 25, 2008
To all radio amateurs

SB QST ARL ARLB008
ARLB008 Court Finds FCC Violated Administrative Procedure Act in BPL
Decision

The US Court of Appeals for the District of Columbia Circuit today
released its decision on the ARRL's Petition for Review of the FCC's
Orders adopting rules governing broadband over power line (BPL)
systems. The Court agreed with the ARRL on two major points and
remanded the rules to the Commission. Writing for the three-judge
panel of Circuit Judges Rogers, Tatel and Kavanaugh, Judge Rogers
summarized: "The Commission failed to satisfy the notice and comment
requirements of the Administrative Procedure Act ('APA') by
redacting studies on which it relied in promulgating the rule and
failed to provide a reasoned explanation for its choice of the
extrapolation factor for measuring Access BPL emissions."

The Court agreed with the ARRL that the FCC had failed to comply
with the APA by not fully disclosing for public comment the staff
studies on which it relied. The Court also agreed with the ARRL that
the Commission erred in not providing a reasoned justification for
its choice of an extrapolation factor of 40 dB per decade for Access
BPL systems and in offering "no reasoned explanation for its
dismissal of empirical data that was submitted at its invitation."
The Court was not persuaded by the ARRL's arguments on two other
points, on which it found that the Commission had acted within its
discretion.

The conclusion that the FCC violated the APA hinges on case law. "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," the Court said,
adding that "there is no APA precedent allowing an agency to
cherry-pick a study on which it has chosen to rely in part."

The Court continued, "The League has met its burden to demonstrate
prejudice by showing that it 'has something useful to say' regarding
the unredacted studies citation omitted that may allow it to 'mount
a credible challenge' if given the opportunity to comment."
Information withheld by the Commission included material under the
headings "New Information Arguing for Caution on HF BPL" and "BPL
Spectrum Tradeoffs." The Court concluded that "no precedent
sanctions such a 'hide and seek' application of the APA's notice and
comment requirements."

With regard to the extrapolation factor, the Court ordered: "On
remand, the Commission shall 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, or adopt another factor and provide a reasoned
explanation for it." The studies in question were conducted by the
Office of Communications, the FCC's counterpart in the United
Kingdom, and were submitted by the ARRL, along with the League's own
analysis showing that an extrapolation factor closer to 20 dB per
decade was more appropriate, as part of the record in its petition
for reconsideration of the FCC's BPL Order. The Court said that the
FCC "summarily dismissed" this data in a manner that "cannot
substitute for a reasoned explanation." The Court also noted that
the record in the FCC proceeding included a study by the National
Telecommunications and Information Administration that "itself casts
doubt on the Commission's decision."

The briefs for the ARRL were prepared by a team of attorneys at
WilmerHale, a firm with extensive appellate experience, with
assistance from ARRL General Counsel Christopher D. Imlay, W3KD.
Oral argument for the ARRL was conducted by Jonathan J. Frankel of
WilmerHale. Oral argument was heard on October 23, 2007; the Court's
decision was released more than six months later.

After reading the decision, General Counsel Imlay observed, "The
decision of the Court of Appeals, though long in coming, was well
worth the wait. It is obvious that the FCC was overzealous in its
advocacy of BPL, and that resulted in a rather blatant cover-up of
the technical facts surrounding its interference potential. Both BPL
and Amateur Radio would be better off had the FCC dealt with the
interference potential in an honest and forthright manner at the
outset. Now there is an opportunity to finally establish some rules
that will allow BPL to proceed, if it can in configurations that
don't expose licensed radio services to preclusive interference in
the HF bands."

ARRL Chief Executive Officer David Sumner, K1ZZ, added: "We are
gratified that the Court decided to hold the FCC's feet to the fire
on such a technical issue as the 40 dB per decade extrapolation
factor. It is also gratifying to read the Court's strong support for
the principles underlying the Administrative Procedure Act. Now that
the Commission has been ordered to do what it should have done in
the first place, we look forward to participating in the proceedings
on remand, and to helping to craft rules that will provide licensed
radio services with the interference protection they are entitled to
under law."

ARRL President Joel Harrison, W5ZN, concluded: "I am very pleased
that the Court saw through the FCC's smoke screen and its
withholding of valid engineering data that may contradict their
position that the interference potential of BPL to Amateur Radio and
public safety communications is minimal. The remand back to the FCC
regarding their use of an inappropriate extrapolation factor
validates the technical competence of Amateur Radio operators and
especially of the ARRL Lab under the direction of Ed Hare, W1RFI. We
are grateful for the work of our legal team and especially for the
unflagging support of the ARRL membership as we fought the odds in
pursuing this appeal."
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