ARRL Faces FCC in Federal Court Over BPL Issues:

On Tuesday, October 23, the ARRL faced the Federal Communications Commission in the US Court of Appeals over the continuing debate concerning harmful interference to licensed radio services from unlicensed Broadband over Powerline (BPL) systems. BPL is the delivery of broadband Internet communications using unshielded electrical wiring to conduct high-speed digital signals to homes and businesses. BPL systems are designed to conduct RF energy through unshielded, medium voltage power lines, using some or all of the HF spectrum between 1.7-80 MHz. At those frequencies on unshielded overhead power lines, the electrical wiring not only conducts the signals, it radiates them very efficiently for very substantial distances from the power lines.

In October 2006, the League petitioned the United States 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 2006 Memorandum Opinion and Order which generally denied all of the 17 petitions for reconsideration. In its brief initially filed May 17, the ARRL contends, among other things, that the FCC's adoption of rules to govern unlicensed BPL systems fundamentally alter the longstanding rights of radio licensees, including Amateur Radio operators. Specifically, the FCC order, while adopting rules that it claimed would minimize instances of harmful interference to licensed services, eliminated a fundamental requirement for unlicensed devices, and held for the first time that BPL systems need not shut down in the case of unresolved instances of harmful interference to "mobile" stations.

The ARRL argues that the FCC's BPL rules violate Section 301 of the Communications Act, which requires that operators of devices that emit radio frequency energy which have a substantial interference potential cannot operate without 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 brief notes that extensive studies done by the National Telecommunications and Information Administration conclude persuasively that interference from BPL to mobile stations can be expected at distances up to almost a football field, and to fixed stations at distances up to five football fields.

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."

Each side had 20 minutes to present their case, with the League going first. Attorney Jonathan Frankel, of the WilmerHale Law Firm, argued the case for ARRL before the three judge panel; Attorney C. Grey Pash, of the FCC General Counsel's office, argued for the FCC. According to ARRL President Joel Harrison, W5ZN, who attended the Court session, Frankel's argument centered on the removal of interference protection for licensed mobile stations, and the Commission's rules for measuring interference. "Frankel received multiple, direct questions from each of the judges concerning the topics in the briefs, and responded to each very well," Harrison said.

"Judges Tatel, Rogers and Kavanaugh interrupted both sides repeatedly with intelligent, challenging questions," ARRL Chief Executive Officer David Sumner, K1ZZ, said. "For example," Sumner continued, "while quizzing Frankel, the judges sounded skeptical that interference to mobile stations couldn't simply be regarded as 'not harmful' because it was temporary; but then, when quizzing the FCC's attorney, Judge Tatel said in response to the statement that 'mobile stations could simply move,' that in the case of BPL in Manassas, Virginia for example, you can only get away from the interference by leaving Manassas.' It wasn't, he went on to say, like a garage door opener."

For the first time in decades, the FCC decided against requiring that operations found to cause "harmful interference" be shut down immediately -- a stance that ignores the "right of the license holder to be free from interference," Frankel said in court. The FCC has also withheld portions of studies that would "potentially" show BPL does cause harmful interference to other devices -- and ignored reports of tests the ARRL argues offer "substantial" evidence of interference problems, he continued. "We're talking about devices that radiate for football fields in length and all along power lines," Frankel said of the BPL gadgets. "When you drive down the street, [an Amateur Radio operator's] service is interrupted constantly."

"All three judges were clearly very familiar with the written record. They spent a lot of time on the issue of what information the FCC had withheld from public view (redacted)," Sumner said. "In the course of the argument, the FCC's attorney had to acknowledge that the Commission's explanations in the BPL proceeding were deficient in a number of respects, although it wasn't clear that administrative agencies are held to a very high standard in that regard."

Harrison said that Pash, the FCC's attorney, began his defense of the FCC orders and was almost "immediately interrogated" by the judges on the Commission's premise that "a mobile station in a licensed service should not be afforded complete protection from harmful interference just because it can just move away from the interference.

Pash also came under what Harrison called "considerable direct questioning" concerning the redacted material from the FCC's response to the ARRL's Freedom of Information request. ARRL had asked the FCC to produce all of what FCC described as "extensive" studies allegedly justifying its BPL order, on which the FCC relied in adopting the BPL rules. The FCC had deleted what appeared to be any material in that one single study that indicated that interference from BPL systems was likely. One page that was completely redacted was a Powerpoint slide titled "New Information Arguing for Caution on HF BPL." The FCC claimed that was not factual information, but just staff advice. Pash "attempted to present a position that the material pertained to 'staff opinion' that was determined to not be a basis for the FCC's decision," Harrison said. According to Pash, the redacted sections referenced earlier sections of the report, and were not "a bunch of new information," Harrison added.

Pash defended the Commission's approach. He said the FCC didn't require the so-called "cease-operations" rule because it didn't find ample evidence that BPL posed any real potential for "harmful" interference. He said the studies the FCC relied upon, including one by the US National Telecommunications and Information Administration, found that so long as the FCC restricts the strength of the signals emitted by BPL devices -- as it did through its rules -- others sharing that spectrum "won't notice a difference" in the quality of their services.

Attorney Frankel reserved seven of his allotted 20 minutes for rebuttal of the FCC's arguments. He reiterated the League's position concerning mobile operations and also emphasized that "unless we have an opportunity to review the redacted material, no determination can be made as to its role in the FCC's rulemaking decision," Harrison said.

Both Sumner and Harrison said they were "quite impressed" with the knowledge that the judges had concerning the case and with the questions that they asked. Harrison said it could be "three months or more" before the Court announces its decision. - Some information from cnet.com

Source:

The ARRL Letter Vol. 26, No. 43 October 26, 2007

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