Court Decision Has BPL Implications:
Don Schellhardt KI4PMG (CALLSIGNPENDING)
on
June 29, 2004
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COURT DECISION HAS IMPLICATIONS FOR BPL
In a June 2003 decision, the FCC announced it was raising some of the previously applicable ceilings on how much of the media a single entity can own. A challenge was filed in court.
On June 24, 2004, the U.S. Third Circuit Court, in Philadelphia, chose to override the FCC's decision and send the matter “back to the drawing board” at the FCC. The court ruled the FCC had made a one-sided and overly narrow interpretation of the key statutory provision … had engaged in a “rush to judgment” … and had given far too little weight to “the public interest”.
The KIND of charges that were made against FCC actions on media ownership, which the court has now affirmed, are similar to the charges being made now against FCC actions on BPL.
PERHAPS, then, the Third Circuit Court's decision on media ownership ceilings will persuade the FCC to move more cautiously in its future actions on BPL. At the very least, the court's decision should EMBOLDEN critics of the BPL proposal -- by showing them that courts CAN, and WILL, chastise and override the FCC when and if it becomes too haughty or hasty.
SET FORTH BELOW is the text of an Amended Motion that was filed jointly on June 22, in FCC Docket 04-37, by the NATIONAL ANTENNA CONSORTIUM (www.antenna-consortium.org) and THE AMHERST ALLIANCE (www.amherstalliance.org). The Motion may interest you because the arguments in it can be used by ARRL and/or others in a future court challenge -- IF the final version of the FCC's BPL rule is bad enough to require one.
FEDERAL COMMUNICATIONS COMMISSION
Regulatory Oversight Of )
Broadband Over Powerlines ) FCC Docket 04-37
BY THE NATIONAL ANTENNA CONSORTIUM (NAC)
RE-ISSUANCE OF CERTAIN PROPOSED RULE PROVISIONS,
WITH A RELATED NEW COMMENT PERIOD,
AND AN EXTENSION OF TIME IN FCC DOCKET 04-37
Introduction Of The Parties Filing This Motion 1
Our Response To The Commission's Response 2
Evidence Of Insufficient “Clarity And Completeness” In The
Interference Provisions Of The Current Version Of The Proposed Rule 3
Need For New Proposed Rule Provisions On Ionosphere Propagation
And Certain Other Matters 4
Need For An Additional Extension Of Time For Reply Comments On
Those Provisions Of Those Proposed Rule Provisions Which Are Not
Being Re-Issued For Public Comment 5
FEDERAL COMMUNICATIONS COMMISSION
Regulatory Oversight Of )
Broadband Over Powerlines ) FCC Docket No. 04-37
BY THE NATIONAL ANTENNA CONSORTIUM (NAC)
AND THE AMHERST ALLIANCE
FOR
RE-ISSUANCE OF CERTAIN PROPOSED RULE PROVISIONS,
WITH A RELATED NEW COMMENT PERIOD,
AND AN EXTENSION OF TIME IN FCC DOCKET 04-37
The NATIONAL ANTENNA CONSORTIUM (NAC) is a non-profit advocacy group,
representing those who own, use or manufacture antennas and/or those who own, lease or
build communications towers. THE AMHERST ALLIANCE is a Net-based, national
citizens' advocacy group, supporting Low Power Radio in particular and media reform
in general. Both NAC and Amherst have been active participants in FCC Docket 04-37.
NAC and Amherst thank and commend the FCC for granting, in part, our May 21, 2004
Motion For Extension Of Time And Re-Issuance Of Certain Proposed Rule Provisions.
As a result of the May 27, 2004 Order that responded to our May 21 Motion, the Reply
Comments deadline in this Docket was extended from June 1, 2004 to June 22, 2004.
NAC And THE AMHERST ALLIANCE
Our Response To The Commission's Response
While the NAC/Amherst Motion was granted in part, it was also denied in part.
1. NAC and THE AMHERST ALLIANCE had asked for a longer extension of the Reply Comments deadline. An extension to June 22, 2004 was granted -- for the explicitly stated purpose of providing 3 weeks for interested parties to review the
then-pending Phase II report on BPL interference by the National Telecommunications and Information Administration (NTIA). NAC and Amherst, however, had requested
2 months for interested parties to review of the NTIA's Phase II report.
The FCC limited the review period to 3 weeks on the grounds that NAC and Amherst had failed to provide a specific reason why a longer review period is needed.
2. NAC and THE AMHERST ALLIANCE had sought re-issuance of certain provisions of the proposed rule, with a 2-month comment period on them. Our goal was to permit public comment on proposed interference provisions that feature “greater clarity and completeness” than the language in the current version of the proposed rule.
The FCC denied this portion of the May 21 Motion, stating that NAC and THE AMHERST ALLIANCE had failed to provide enough “specificity” for our assertion that the currently proposed language is threadbare.
In both cases, NAC and THE AMHERST ALLIANCE had considered the validity of
each of our assertions to be clear on its face. Nevertheless, we are more than willing to
provide the “specificity” that the Commission has explicitly requested from us.
NAC and THE AMHERST ALLIANCE
In doing so, we have made a “judgment call” to use the vehicle of an Amended Motion
for this purpose. We considered the alternative of filing a Petition For Reconsideration
of the FCC's May 27 Order, but we decided that filing an Amended Motion is a cleaner,
Evidence Of Insufficient “Clarity And Completeness”
In The Interference Provisions
Of The Current Version Of The Proposed Rule
Among other necessary provisions that are “Missing In Action”, the current version of
the interference provisions sets forth no proposed performance standards that either
adaptive interference techniques or shut-down features must meet … no proposed
criteria for determining when adaptive interference techniques or shut-down features
must be triggered … no proposed notification requirements for assuring that
potentially affected parties are even aware that BPL technology is operating in their
neighborhoods … no proposed procedures for resolution of interference complaints
… no proposed time frames for resolution of interference complaints … and no
procedures for appeal of unsatisfactory complaint resolutions.
The interference provisions are beyond “bare bones”. They are down to cartilage.
NAC and THE AMHERST ALLIANCE
Beyond enumerating these particularly grievous omissions, we believe that the very text
of this Amended Motion, as contained in this document, “speaks for itself” in pinpointing
what is missing from the interference provisions of the currently proposed rule.
Need For New Proposed Rule Provisions
On Ionosphere Propagation
And Certain Other Matters
We submitted our original Motion on May 21. The Commission granted our Motion in
part, and denied it in part, on May 27.
A. In accordance with information provided by the NTIA's Phase II report, which was
not posted for review by the public until June 7, we have included the following proposed
new provisions in our Amended Motion:
In proposed new Part 15.109(f), we urge the FCC to propose a new requirement for all BPL service providers to transmit a signal code that facilitates the identification of BPL interference by potentially affected parties;
We urge the FCC to propose a new Part 15.109(h) that “caps” the number of
BPL transmission units in the United States at 500,000 -- until and unless the FCC has issued a final rule to prevent unacceptable levels of ionosphere
propagation from BPL interference.
B. In light of the Reply Comments which were filed by COMSEARCH on June 1 --
and proposed that BPL-related recordkeeping (and possible interference complaint
resolution) should be handled by an “impartial third party” (such as COMSEARCH?)
NAC and THE AMHERST ALLIANCE
rather than by the less-than-impartial BPL service providers themselves -- we are
urging the FCC to clarify whether the term “industry-operated entity”, in proposed new
Part 15.109(g), limits eligibility solely to BPL service providers or instead permits any
interested private sector party to perform the function(s) involved. We are also asking
the FCC to explain why interested non-profit organizations would apparently be made
ineligible for performing the function(s) involved.
Need For An Additional Extension Of Time
For Reply Comments On Those Proposed Rule Provisions
Which Are Not Being Re-Issued For Public Comment
In its May 27 Order, limiting the extension of the Reply Comments deadline in this
Docket to June 22 than the requested date of September 1 (or later), the Commission
stated that NAC and THE AMHERST ALLIANCE had failed to explain why 3 weeks
is not an adequate period of time for interested parties to review, and prepare Reply
Comments to address, the NTIA's Phase II report on BPL interference.
In our May 21 Motion, we requested a 2-month period for review of the NTIA's Phase II
report, rather than a more typical review period of 1 month, because the report itself is
not typical of the documents which executives, lawyers and/or other advocates for
commenting parties usually review in the course of preparing Comments to the FCC.
NAC and THE AMHERST ALLIANCE
Rather, the NTIA's Phase II report, like its Phase I report, is much more technical than
typical. Since the executives, lawyers and/or other advocates who typically prepare
Comments to the FCC are usually less technologically knowledgeable than is necessary
for a full understanding of the NTIA's reports, they must often rely on “translators”.
That is: Those who are technologically knowledgeable must usually review the
materials first, and then “translate” for the executives, lawyers and/or other advocates
who actually prepare the Comments to the FCC. As an internal Question-and-Answer
process unfolds, during the development of Comments, the need to “translate” highly
technological content can continue to act as an impediment on many commenting parties.
Indeed, the need for internal “translation” can cut both ways. Questions and
observations from executives and/or lawyers and/or other advocates may sometimes have
to be translated out of “legalese”, or “economistspeak”, or “accountantspeak”, before
technologists can fully understand them.
In light of this explanation, our Amended Motion seeks an additional month for public
review of the Phase II report. If, however, an additional month of review remains
unacceptable to the FCC, our Amended Motion seeks at least an additional week -- in
order to meet the FCC's own stated objective of providing a 3-week review period.
Because the Phase II report was not released to the public until June 7, rather than the
expected date of May 30, the actual review period has been reduced from 3 weeks to 2.
NAC and THE AMHERST ALLIANCE
(1) The current text of proposed new Part 15.109(e) defines “Access BPL systems” as
“A carrier current system that transmits radio frequency energy by conduction over electric power lines owned, operated or controlled by electric service providers. The electric service power lines may be aerial (overhead) or underground.”
We move for re-issuance of this proposed new Part 15.109(e), for public comment, in a
form which clarifies whether or not this definition encompasses the CORRIDOR BPL
technology -- thereby making it subject to the same requirements which would apply
to other BPL technologies.
(2) The current text of proposed new Part 15.109(f) reads as follows:
“Access BPL systems shall incorporate adaptive interference techniques such as dynamic or remote reduction in power and adjustment in operating frequencies, in order for Access BPL installations to avoid [interference with] site-specific, localized use of the same spectrum by licensed services. Access BPL systems shall incorporate shut-down features to deactivate units found to cause harmful interference.”
We move for re-issuance of this proposed new Part 15.109(f), for public comment, in a
NAC and THE AMHERST ALLIANCE
Sets forth performance standards which adaptive interference techniques must meet;
Sets forth performance standards which shut-down features must meet;
Sets forth criteria for when adaptive interference techniques must be triggered;
Sets forth criteria for when shut-down features must be triggered;
Defines what constitutes “harmful interference”;
Sets forth maximum response times for activation of adaptive interference techniques, differentiating between “everyday” situations and life-or-death situations (such as interference with ground-to-air communications, ship-to-shore communications and the operation of medical equipment);
Sets forth maximum response times for activation of shut-down features,
differentiating between “everyday” situations and life-or-death situations (such as interference with ground-to-air communications, ship-to-shore communications and the operation of medical equipment);
Sets forth notification requirements for all BPL service providers, establishing a legal obligation for them to afford advance notice of BPL operations to all potentially affected parties, and further requiring them to provide all potentially affected parties with information on how to identify BPL interference, as well as information on when and where to file any complaints about BPL interference;
(I) Sets forth a requirement for all BPL service providers to transmit a signal code
that effectively facilitates identification of BPL interference by potentially
Sets forth special criteria and procedures for dealing with potential BPL
interference that violates international treaties, including those which protect
international shortwave transmissions, and/or other aspects of international law.
(3) The current text of proposed new Part 15.109(g) reads as follows:
“Entities operating Access Broadband over Powerline systems shall supply to a Federal Communications Commission/National Telecommunications and Information Administration recognized industry-operated entity, information on all existing, changes to existing and proposed Access BPL systems for inclusion in a data base. Such information shall include the installation locations, frequency bands of operation, and type of modulation used. No notification to the FCC is required.”
NAC and THE AMHERST ALLIANCE
We move for re-issuance of this proposed new Part 15.109(g), for public comment, in a
Clarifies whether or not both the FCC and the NTIA must “recognize” an
“entity” as qualified for completion of the contemplated duties;
Sets forth the proposed criteria and procedures which would be used for
“recognizing” an entity as qualified for completion of these duties;
Sets forth what other contemplated duties besides recordkeeping (if any)
the “recognized entity” would be expected to perform;
Sets forth what institution will resolve interference complaints if the “recognized entity” is not intended to do so and if, as the absence of a requirement to notify the FCC would suggest, the FCC does not intend to resolve interference complaints either;
Sets forth time frames for resolving interference complaints, where the interference complaints have not already been resolved, to the satisfaction of the complaining party or parties, under the provisions of the proposed new Part 15.109(f);
Sets forth how, when and where interference complaints may be appealed when and if the “recognized entity”, or other complaint resolution institution, fails to resolve the complaint to the satisfaction of the complaining party or parties;
Clarifies whether the term “industry-operated entity” limits eligibility to “recognized entities” operated only by the BPL service industry (or members thereof) or includes any private sector entity which may be interested;
Explains, in the former case, why eligibility is limited only to those with
a clear and automatic self-interest in resolving interference complaints in favor of one side of the dispute, and explains, in either case, why non-profit organizations are excluded from eligibility for service as a “recognized entity”;
(I) Sets forth requirements for public access to the data base in question, at least
to the extent this may be necessary to document, and/or resolve to the satisfaction of the complaining party or parties, complaints about interference from BPL operations.
NAC and THE AMHERST ALLIANCE
(4) In light of the NTIA's Phase II report, which confirms the risk of “ionosphere
propagation” of BPL interference when and if BPL transmission units in the United
States rise above “hundreds of thousands” in number, we move for issuance of a
proposed new Part 15.109(h) on ionosphere propagation, to read as follows:
“(h) When the data base maintained by the entity referenced in Part 15.109(g) indicates that the number of BPL transmission units operating in the United States has reached 500,000, no additional BPL transmission units shall be permitted to begin operation, until and unless the Federal Communications Commission has first issued a final rule designed to prevent unacceptable levels of ionosphere propagation from BPL operations in the United States.”
(5) For the re-issued proposed rule provisions that are set forth in Items 1 through 3,
above, and the proposed new Part 15.109(h) that is set forth in Item 4, above, we move
that the Commission establish a Written Comments deadline set at the later of:
(B) 2 months after the date of publication of the proposed new provisions in THE FEDERAL REGISTER.
(6) For the re-issued proposed rule provisions that are set forth in Items 1 through 3,
above, and the proposed new Part 15.109(h) that is set forth in Item 4, above, we move
that the Commission establish a Reply Comments deadline set at the later of:
NAC and THE AMHERST ALLIANCE
(B) 3 months after the date of publication of the proposed new provisions in THE FEDERAL REGISTER.
(7) With respect to the text of the proposed rule that is currently contained in FCC
Docket 04-37, we move that the Reply Comments deadline should again be extended,
subject to a requirement that Reply Comments filed after June 22, 2004 must be limited
to addressing only the NTIA's Phase II report on BPL interference, which was not
released to the general public until June 7, 2004. Subject to this requirement, we move
that the Commission should establish a new Reply Comments deadline, set at the later of:
(B) 1 month after the date of publication of the new Reply Comments deadline in THE FEDERAL REGISTER.
(8) Should this proposed new Reply Comments deadline in Item 7 be unacceptable to
the Commission, we remind the Commission that its May 27, 2004 Order expressed the
intent to provide a period of 3 weeks for interested parties to review, and prepare Reply
Comments to address, the NTIA's Phase II report on BPL interference. Because the
Phase II report was in fact completed, and released to the public, more than 1 week
later than the Commission had expected, interested parties have effectively lost one third
of the originally anticipated 3-week review period.
NAC and THE AMHERST ALLIANCE
Therefore, if the proposed new Reply Comments deadline in Item 7 is unacceptable to the
Commission, we urge the Commission to take the minimum action of at least restoring
the 3-week review period that was originally intended. To this end, we move the
Commission to establish a new Reply Comments deadline in FCC Docket 04-37, subject
to the requirement proposed in Item 7, set at the later of:
(B) 1 week after the date of publication of the new Reply Comments deadline in THE FEDERAL REGISTER.
In this document, and in the text of the Amended Motion it contains, we believe we have
provided more than enough of the “specificity” which the Commission requested us to
provide in its May 27 Order on our May 21 Motion. For the reasons set forth herein,
we urge the Commission to grant our Amended Motion forthwith.
NAC and THE AMHERST ALLIANCE
Vice President, Government Relations & Membership Development
NATIONAL ANTENNA CONSORTIUM (NAC)
Cheshire, Connecticut 06410
Special Assistant to the President
South Glens Falls, New York 12803
Dated: _____________________
This article has expired. No more comments may be added.
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Court Decision Has BPL Implications:
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by KB2HSH on June 29, 2004
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Mail this to a friend!
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Finally! A rational person or group that understands just exactly how serious a matter this is.
Could there be a glint of hope afterall?
John HSH
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Court Decision Has BPL Implications:
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by K5UJ on June 29, 2004
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Mail this to a friend!
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As always Don, thanks for your work on our behalf.
I had a feeling the BPL thing would wind up going to court about 18 months ago and it is starting to look as if I was right, i.e. that is the only way amateur radio is going to get a fair hearing.
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RE: Court Decision Has BPL Implications:
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by AB5XZ on June 29, 2004
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Mail this to a friend!
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The thing that concerns me in this is that currently we (hams and HF users) are protected from ANY harmful interference. If the BPLers get their way, the FCC will revise Part 15 to set a limit on emissions and also say that interference to us (hams and HF users) is OK.
This is right up there with the FCC's "interference temperature" fantasy.
73TomAB5XZ
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RE: Court Decision Has BPL Implications:
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by K5UJ on June 30, 2004
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Yes but, amazingly, it is starting to look like we are going to have to go to a federal court and get a (favorable I hope) decision, ordering the FCC to enforce a rule they already have in the U.S. Code.
Right now, it appears that they are letting go of their obligations and letting BPL operators use HF, in the same way they let go of 27 MHz and allowed CBers to use 11 meters, and how was that? Any way they want to.
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Court Decision Has BPL Implications:
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by KC9EOT on June 30, 2004
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I dont know how this would work but the first thing that comes to mind with me is class action law suits against BPL entities that refuse to fix their noise problems.
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