ARRL Files Federal Appeals Court Brief in Petition for Review of BPL Rules:

The ARRL has filed a federal appeals court brief outlining its case and requesting oral arguments in its petition for review of the FCC's broadband over power line (BPL) rules. The League has petitioned the US Court of Appeals for the DC Circuit to review the FCC's October 2004 Report and Order (R&O) in ET Docket 04-37 and its 2006 Memorandum Opinion and Order. In its brief filed May 17, the ARRL contends, among other things, that the FCC's actions in adopting rules to govern unlicensed BPL systems fundamentally alter the longstanding rights of radio spectrum licensees, including Amateur Radio operators.

"For the first time ever, the FCC has permitted new unlicensed devices to operate in spectrum bands already occupied by licensees, even if the unlicensed operations cause harmful interference to the licensees," the League said in stating its case. "The orders under review reverse nearly seven decades of consistent statutory interpretation and upset the settled expectations of licensees without so much as acknowledging the reversal, let alone justifying it."

The ARRL argues that the FCC's approach to adopting rules to govern BPL flies in the face of Section 301 of the Communications Act, which requires that operators of devices that emit radio frequency energy first obtain an FCC license. "For years, the FCC has consistently read Section 301 to apply to unintentional radiators, such as BPL devices, and has expressly embodied that interpretation in its rules," the League's brief recounts.

The Commission then compounded its error by asserting that BPL devices do not fall within Section 301 at all, the League said. "This hail-Mary attempt at justification is another unexplained departure from prior policy that independently requires invalidation of the orders," the ARRL remarked in its brief.

The ARRL contends that the FCC orders under review "jeopardize the license rights of ARRL's members and other license holders by authorizing providers of a new device -- Access Broadband over Power Lines, or 'BPL' -- to send radio signals across the electric grid in the frequencies the license holders occupy, but without having to obtain an FCC license."

The League's brief further asserts that the FCC "has failed to discuss or disclose significant information in the record that potentially contradicts its key interference findings," and seeks to have the FCC produce the information. The ARRL alleges that the Commission not only withheld its internal studies until it was too late to comment but has yet to release portions of studies that may not support its own conclusions. The FCC has claimed that these are "internal communications" that it did not rely upon in reaching its decision to adopt the BPL rules.

"If, as seems more likely, the Commission actually considered and rejected the information contained in the redacted portions of its studies, then it had a duty to disclose the information and reasons for rejecting it. Either way, the FCC acted improperly."

The League also takes issue with what it argues is the FCC's "arbitrary and capricious" adoption of a BPL emission measurement standard that's unsupported by the record in the proceeding and ignores contrary evidence. Additionally, the ARRL says, the FCC rejected a proposed alternative without even considering it.

Said ARRL CEO David Sumner, K1ZZ, in his "It Seems to Us . . ." editorial for July QST: "The Commission's penchant for ignoring contrary evidence is illustrated even more vividly with regard to how quickly RF emissions are assumed to decay as one moves away from the source. This is important because if the signal is assumed to decay more quickly than it really does, the interference potential of the emissions will be underestimated."

As Sumner notes, the FCC has claimed that "many parties" have presented experimental data supporting a 40 dB per decade (10 times increase in distance) rate. "In fact, there is no such evidence in the record -- and empirical evidence supporting a lower number was ignored," he asserts.

The League maintains that the Commission failed to consider the ARRL's sliding-scale alternative that would have avoided what Sumner calls "the logically indefensible situation that now exists in the rules: the extrapolation factor is 20 dB/decade at 30.001 MHz and 40 dB/decade at 29.999 MHz."

In addition, the ARRL wants the court to determine if the FCC was arbitrary and capricious in failing to limit BPL providers "to frequencies where interference was less likely to occur without materially harming BPL deployment." The League argues that the FCC ignored evidence that restricting BPL to the 30-50 MHz frequency range would have obviated interference to long-distance HF communications without causing problems for public safety services.

The ARRL brief asserts that, for the first time ever, the FCC "has authorized the operation of unlicensed devices that it concedes interfere with licensed devices" and has declared that such devices "may continue operating even where proven to cause interference."

The FCC, ARRL contends, has concluded that BPL's acknowledged interference risks are manageable, but it bases that conclusion -- which ARRL calls "the linchpin of the challenged orders" -- on FCC studies the Commission has declined to make public in unedited form.

"It is clear," the ARRL contends in his brief, "that the withheld pages contain information" that is at odds with the FCC's conclusion to adopt the current rules governing BPL deployments.

"ARRL is not trying to stop the deployment of BPL," the League's brief concludes. ARRL and other commenters have provided the FCC with alternative proposals -- ones that have been demonstrated to work in the real world -- that would have allowed BPL to prosper without harm to licenses or to Congress's licensing regime."

"What is perhaps most unfortunate about the FCC's radical actions in this case is that they were entirely unnecessary."

The FCC's response to the League's brief is due July 2.

Source:

The ARRL Letter Vol. 26, No. 21 May 25, 2007

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