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ARRL Tells FCC to 'Reconsider, Rescind and Restudy' BPL Order:

from W1AW Bulletin via the ARRL on February 9, 2005
Website: http://www.arrl.org/
View comments about this article!

ARRL Tells FCC to ''Reconsider, Rescind and Restudy'' BPL Order:

ZCZC AG05
QST de W1AW
ARRL Bulletin 5 ARLB005
>From ARRL Headquarters
Newington CT February 9, 2005
To all radio amateurs

SB QST ARL ARLB005
ARLB005 ARRL Tells FCC to ''Reconsider, Rescind and Restudy'' BPL Order

The ARRL has petitioned the FCC to take its broadband over power line (BPL) Report and Order (R&O) back to the drawing board. In a Petition for Reconsideration filed February 7, the League called on the Commission to ''reconsider, rescind and restudy'' its October 14, 2004, adoption of new Part 15 rules spelling out how BPL providers may deploy the technology on HF and low-VHF frequencies. Asserting that the R&O fails to adequately take into account the technology's potential to interfere with Amateur Radio and other licensed services, the League called the FCC's action to permit BPL ''a gross policy mistake.'' The R&O, the ARRL said, ''represents a classic case of prejudgment'' by an FCC that knew better but ignored evidence already at its disposal.

''It is readily apparent that the Commission long ago made up its mind that it was going to permit BPL without substantial regulation, no matter what the effect of this flawed application of old technology is on licensed radio services,'' the League's petition declares. The ARRL accuses FCC Commissioner Michael Powell and his four colleagues of deliberately authorizing ''a spectrum pollution source'' that's proven to be incompatible with existing licensed uses of the HF spectrum.

''The Commission wanted nothing to contradict its enthusiasm about BPL,'' the League said, and its Office of Engineering and Technology (OET) saw to it that evidence of the ''fundamental incompatibility'' between BPL and incumbent HF radio services ''was suppressed, ignored or discredited.'' The FCC has not adjudicated a single interference complaints, the ARRL added, but has swept interference complaints under the rug.

The ARRL further argued that Powell should have recused himself from voting on the R&O. The chairman, the ARRL says, violated the FCC's own ex parte rules by attending a BPL provider's demonstration October 12, after release of the October 14 agenda. Powell ''tainted this proceeding'' by taking part in the demonstration, and that alone is sufficient to have the Commission vacate and reconsider its action, the ARRL alleged.

The League also said the FCC's ''late and incomplete'' responses to ARRL's Freedom of Information Act (FOIA) requests fail to show any support for FCC's conclusions regarding interference to licensed services from BPL. The highly redacted information release contained nothing that supports the FCC's conclusions about BPL's interference potential and suppressed negative recommendations from its own technical investigators, the petition says. As a result, the League said, the Commission ''failed to conduct impartial, reasoned rulemaking.''

The Commission used an unlawful ''balancing test'' that weighed BPL's purported benefits against its interference to licensed services, the League asserts, creating ''a hierarchy of licensed radio services'' based upon ''how much interference each service deserves.'' The Communications Act, the League's petition points out, requires an objective determination from the outset that the likelihood of harmful interference from a proposed unlicensed service is virtually nil.

The interference mitigation rules in the R&O are both ineffective and inequitably applied, the ARRL's petition further argues. Noting the new rules do not require BPL systems to shut down in the event of interference except as ''a last resort,'' the League said the practical effect is ''that systems will never have to shut down,'' even if the BPL operator has not been able to remedy ongoing harmful interference to the Amateur Service. The new rules, the petition charges, accord priority to unlicensed BPL, ''regardless of the preclusive effect'' or the duration of interference.

In its unanimous BPL decision, the Commission, the League says, has abandoned its fundamental obligation to avoid interference in telecommunication systems, instead requiring complainants to initiate contact with BPL providers and ''beg for resolution.'' The ARRL petition also faults the Commission's adopted measurement standards.

The League's Petition for Reconsideration in ET Dockets 03-104 and 04-37 is on the ARRL Web site, http://www.arrl.org/announce/regulatory/et04-37/recon_petition/.
NNNN
/EX

Source: W1AW Bulletin via the ARRL.

Member Comments:
This article has expired. No more comments may be added.
 
ARRL Tells FCC to 'Reconsider, Rescind and Restudy  
by WB2AMU on February 10, 2005 Mail this to a friend!
I am grateful that the ARRL is pushing hard on this issue. I suspect that it will ultimately end up in the courts to resolve but it appears that M. Powell has left an awful legacy to clean up.....
 
ARRL Tells FCC to 'Reconsider, Rescind and Restudy  
by KT0DD on February 10, 2005 Mail this to a friend!
I am growing tired of all this "diplomacy", although I do appreciate the league's efforts. The only thing that will settle this is a federal lawsuit. The cats out of the bag already, so there's no element of surprise, but as a good friend once told me, "You never threaten someone with a lawsuit, you SURPRISE them." 73.
 
ARRL Tells FCC to 'Reconsider, Rescind and Restudy  
by K0RGR on February 10, 2005 Mail this to a friend!
This clearly establishes the grounds for a legal challenge depending on FCC's eventual response. There have also been some other very good petitions for reconsideration from other quarters.

It does not appear that FCC's report and order has produced the wave of acceptance that the industry was hoping for.
 
RE: ARRL Tells FCC to 'Reconsider, Rescind and Res  
by KG6AMW on February 10, 2005 Mail this to a friend!
Good job ARRL!
 
ARRL Tells FCC to 'Reconsider, Rescind and Restudy  
by K0RGR on February 10, 2005 Mail this to a friend!
Unfortunately, there is a procedure here. You can never "surprise" a government agency with a lawsuit.
 
RE: ARRL Tells FCC to 'Reconsider, Rescind and Res  
by K0RFD on February 10, 2005 Mail this to a friend!
Diplomacy? In order to file suit, the ARRL must establish that somebody has done something wrong that has damaged its members. In order to succeed in a suit, they'll have to prove it by a preponderance of the evidence.

From the dictionary (www.m-w.com):

"Main Entry: tort
Pronunciation: 'tort
Function: noun
Etymology: Middle English, injury, from Middle French, from Medieval Latin tortum, from Latin, neuter of tortus twisted, from past participle of torquEre
: a wrongful act other than a breach of contract for which relief may be obtained in the form of damages or an injunction"

From www.legal-definitions.com:

"a tort occurs when someone deliberately or through carelessness causes harm or loss to another person or their property."

I'm no lawyer, but it seems that the ARRL is doing a good job of establishing that its members have been damaged (incurred a loss) and the damage was a result of deliberate acts by the FCC, acts that violated the FCC's own regulations.

This isn't diplomacy. The ARRL is laying the groundwork for the lawsuit that is sure to come. Next step in the dance: The FCC denies their petition for reconsideration. It's too early for a lawsuit, because there are still processes left that have to be gone thru.

In other words, "Keep your powder dry, son".
 
ARRL bloviates: 'Reconsider, Rescind and Restudy&q  
by W9WHE-II on February 10, 2005 Mail this to a friend!
KT0DD writes:

"I am growing tired of all this "diplomacy".

Its NOT diplomacy, its the law Todd.
Before suing a gov. agency, you must FIRST exaust all adminsitrative remidies. While liberals love to sue everybody for everything everywhere at the drop of a hat, you get thrown out of court, as premature, unless you FIRST exaust all administrative proceedures with the gov. agency. That means you jump through all the hoops before litigating.

keep your perspective. ARRL's blustery language is just "red meat" for the party base - its core constituency. It helps ARRL generate $$ money. Guys like Todd get all reved up and send money when ARRL talks tough. But make no mistate, its just talk. If you think the FCC is quaking in its boots because ARRL bloviates, think again. While I hope BPL fails, nobody should be confused into thinking that ARRL's language is anything other than "hot air" and "red meat". Such language does not further our cause. It just antoginizes people that make rules governing our licenses! Keep that in mind.

Tod is right on one point, once the administrative process has been exausted, this will go to court. But, BE CAREFUL WHAT YOU WISH FOR. In the end, FCC could decide to EXEMPT ham radio from part 15 protections. That's right, FCC could EXEMPT ham radio from Part 15 protections. Let's just hope that is not the eventual outcome. Keep in mind, petitioning and challenging the FCC is one thing. However, unnecessary antagonization is qute another. Let's hope BPL fails due to technical and economic limitations.

ARRL should keep to the issues, avoid unnecessary antogonization. Remember, the FCC controls our future. Let's not P. them off unnecessaraly! Challenge them yes, but do it without unnecessary provocation. Remember, if you initiate "global thermo-nuclear war" then you must be prepared to live with the aftermath. Suing is fine, but let's not make permanant enemies of the FCC.

W9WHE






 
RE: ARRL bloviates: 'Reconsider, Rescind and Restu  
by W9WHE-II on February 10, 2005 Mail this to a friend!
Actually, this is not a tort issue.
The issue, as currently framed, is whether the FCC is following the law as it has previously set down and as directed by congress under the Communications Act of 1934.

In a civil (tort) action, a plaintiff must prove its case by a preponderance of evidence. HOWEVER, administrative agencies are, under the law, entitled to "considerable defference" and a rebuttable "presumption" of correctness. In other words, the standards in this context are tougher then in a tort case.

W9WHE
 
ARRL Tells FCC to 'Reconsider, Rescind and Restudy  
by AD5SX on February 10, 2005 Mail this to a friend!
I think all the postings before mine says it. While I recognize the ARRL is not perfect, I think they are doing a fine job for us. The FCC needs to be held accountable for their actions or lack of actions. Keep up the good work ARRL.

73,

Paul AD5SX
 
ARRL Tells FCC to 'Reconsider, Rescind and Restudy  
by W2CSH on February 10, 2005 Mail this to a friend!
I notice one thing throughout these posted comments to the ARRL's efforts. K0RFD and all the others state that "the ARRL" or "the League" is doing a good job of fighting BPL. Well, WE MEMBERS of the ARRL fight every day for spectrum equality and the defense of the amateur spectrum while many others sit on the sidelines and complain about ham radio. If you are not a member of the ARRL then you have no right to comment or complain. I pay my dues, contribute to the spectrum defense fund, write letters to members of the US house of representatives and to my state representatives on Amateur radio issues and emergency communications issues. We are on the cusp of passing a statewide antenna bill here in New Jersey. We are so far successful because New Jersey has a preponderance of league members who take the time to become activists. We let our state officials know how we feel and that we vote.

Now when more of you join the League in its efforts and become activists for your hobby then you will have far less to complain about. Oh I know a bunch of you will post comments of how the league has done this and that and how you think its bad. Well its the only organization out there that has the clout and the resources to represent your interests. Shame on you if you think too little of your hobby to help the rest of us fight for our interests. So stop whining and send in your membership dues.

So let me state this for the record: As a dues paying member of the ARRL I support the Leagues efforts to fight BPL and will contribute as much money as I can afford to continue the battle. And by the way, we all know that a Tort is a little pastry thing that you have with coffee in the morning.
 
RE: ARRL Tells FCC to 'Reconsider, Rescind and Res  
by KT0DD on February 10, 2005 Mail this to a friend!
Quote:
"Diplomacy? In order to file suit, the ARRL must establish that somebody has done something wrong that has damaged its members. In order to succeed in a suit, they'll have to prove it by a preponderance of the evidence."

This has already been established at almost every test site for BPL. Their emmisions have caused interference to licensed services, and in many cases made portions of the HF spectrum unuseable. So far in 90% of the cases, mitigation efforts have proven ineffective. What more proof is needed? The BPL people are violating Part 15 with little regard and also are most likely violating several international laws as well. Anyone who can't admit this has read "The Emperor with no clothes on" fables too many times. 73.
 
RE: ARRL Tells FCC to 'Reconsider, Rescind and Res  
by K0RFD on February 10, 2005 Mail this to a friend!
KT0DD -- WHE is correct. It's not that easy to sue the govermnemt. There are still administrative remedies to be pursued.

W2CSH -- agreed. I am a member, I filed comments AND reply comments to the FCC, and I donated what I could afford to the ARRL spectrum defense fund--with specific instructions to use it to put gas in Ed Hare's Subaru (mobile lab?) next time he goes to a BPL site. I'm currently working one of my state legislators here on a side-issue related to BPL. While the FCC regulates spectrum, the State regulates utility rates. I don't want utilities to be allowed to jack up electricity prices to cover bad BPL investments. It'll take time.

People need to be active. I wish there were as many hams who comment to the FCC as who mouth off in chatooms.
 
RE: ARRL Tells FCC to 'Reconsider, Rescind and Res  
by KT0DD on February 10, 2005 Mail this to a friend!
W9WHE:

By the way, I believe this has been one of your most civil replies to my posts and it is appreciated. Thanks. 73.
 
ARRL bloviates: 'Reconsider, Rescind and Restudy&q  
by W9WHE-II on February 10, 2005 Mail this to a friend!
Todd (KT0DD), all you have to do is be civil and avoid personal attacks. Its that simple. It is allways better to keep things on an intellectual level. Generally, I try to ignore your threats to make my life miserable and your personal attacks.

W9WHE
 
RE: ARRL bloviates: 'Reconsider, Rescind and Restu  
by KT0DD on February 10, 2005 Mail this to a friend!
Im just the type that gives back what I get. Have A good day. 73.
 
ARRL bloviates: 'Reconsider, Rescind and Restudy&q  
by W9WHE-II on February 10, 2005 Mail this to a friend!
Actually Todd, you recently vowed, on this very site, to make it your mission to make me miserable (and to drive me screaming, from this site) just because I disagree with your opinions. Or did you forget that?
 
RE: ARRL Tells FCC to 'Reconsider, Rescind and Res  
by KY1V on February 10, 2005 Mail this to a friend!

Sit back and watch gentlemen.

Our ARRL general counsel is an excellent attorney. I watched him "go to town" on the city of Yorktown, VA in 1991 when they sued me to take down a tower for which they previously issued me a permit. They claimed the permit violated local ordinances for set back requirements and was therefore issues illegally.

The 100' tower, the guy wires and all three 5 element monoband yagis remained in the air and the city of Yorktown ate crow.

I have the utmost confidence in Mr. Imlay's ability to defend us against BPL and the FCC's gross misconduct.

David - KY1V
 
RE: ARRL Tells FCC to 'Reconsider, Rescind and Res  
by N8UW on February 10, 2005 Mail this to a friend!
FWIW, I am waiting to buy and build a K2 until this BPL issue reaches something resembling resolution. Does that constitute material damage to Elecraft? Plans for a tower and beam are on hold, too. I wonder if other hams are reluctant to buy new HF equipment, and why the manufacturers are not involved in fighting this. If the ARRL is still waging the good fight, BPL must still be a serious threat, despite the inherent shortcomings.
 
RE: ARRL Tells FCC to 'Reconsider, Rescind and Res  
by KC8VWM on February 10, 2005 Mail this to a friend!

ARRL.

Your membership dollars at work.
 
RE: ARRL Tells FCC to 'Reconsider, Rescind and Res  
by KT0DD on February 11, 2005 Mail this to a friend!
W9WHE:

Yeah, It was under a topic on conspiracy THEORIES, or did your short term memory fail you? I was making an effort to get along, but you continue to open your yap with insults...Do you sabotage yourself in other areas of your life as well? Maybe you should get some help. Just leave me alone, from now on DO NOT reply to me or my posts again unless you can be civil about it. If you can't ignore someone, maybe you should learn how to. it's a most effective tool which I am about to put into practice. You always seem to have to be facetious. SHEESH!
 
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