ARRL FILES FEDERAL APPEALS COURT BRIEF IN PETITION FOR REVIEW OF BPL RULES

[Andre Kesteloot]

==>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."