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ARLB008 Court Finds FCC Violated Administrative Procedure Act in BPL Decision

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  • Mark Thompson
    THE COURT DECISION BELOW IS ANOTHER REASON YOU SHOULD JOIN THE ARRL IF YOU AREN T ALREADY A MEMBER!!!  How to Join the ARRL
    Message 1 of 1 , Apr 26, 2008
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      THE COURT DECISION BELOW IS ANOTHER REASON YOU SHOULD JOIN THE ARRL IF YOU AREN'T ALREADY A MEMBER!!! 
       

       
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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."
      NNNN
      /EX



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