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
http://pacer.cadc.uscourts.gov/commo...1343-1112979.p
df 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 'ha[s] 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."