[SEDXC] Court Finds FCC Violated Administrative Procedure Act in BPL Decision

[Dave - KB4ET]

>
>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."
>NNNN
>/EX