==> ARRL FACES FCC IN FEDERAL COURT OVER BPL ISSUES

[andre kesteloot]

==> 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