[SARC] Fw: ARLB008 Court Finds FCC Violated Administrative Procedure Act in BPL Decision

[John Brown]

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Sent: Friday, April 25, 2008 5:20 PM
Subject: ARLB008 Court Finds FCC Violated Administrative Procedure Act in 
BPL Decision


> 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."
> NNNN
> /EX
>
>
>
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