SpectrumTalk

Appeals Court Sends BPL Decision Back to FCC:
Will Similar FCC Errors Affect More Important Policy Decisions?

The US's national amateur radio group, ARRL*, is gloating properly that it succeeded in the US Court of Appeals for the DC Circuit to remand the FCC's decision in Docket 04-37 back to the Commission for further review. In the big scheme of things, this decision isn't that important since BPL has never had much of a commercial impact and I doubt that it ever will at this point in time since it serves a broadband niche that is largely overcome by alternative technologies. So whether or not further FCC action on this technology allows its commercial use will not really affect anyone other than a few manufacturers and electric utilities who might make small sums, but are unlikely to have a "killer app".

However, the decision is a reminder to FCC that it has not been dealing well with technical issues and similar sloppiness in other proceedings could have major impacts, messing up much more significant technologies.

Let me review some interesting parts of the decision, where is available here for download. (For nonlawyers with a fear of legal issues, this decision is really written very clearly and should be readily accessible to people working in this area. No law degree needed!)

The court's decision revolves on whether the FCC followed the requirements of the Administrative Procedures Act (APA) in reaching its decision. The court explained the basic APA requirements to be considered:

"Under APA notice and comment requirements, “[a]mong the information that must be revealed for public evaluation are the ‘technical studies and data’ upon which the agency relies [in its rulemaking].” Chamber of Commerce v. SEC (Chamber of Commerce II), 443 F.3d 890, 899 (D.C. Cir. 2006) (citation omitted). Construing section 553 of the APA, the court explained long ago that “[i]n order to allow for useful criticism, it is especially important for the agency to identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules.” Conn. Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 525, 530 (D.C. Cir. 1982) (emphasis added). More particularly, “[d]isclosure of staff reports allows the parties to focus on the information relied on by the agency and to point out where that information is erroneous or where the agency may be drawing improper conclusions from it.” Nat’l Ass’n of Regulatory Util. Comm’rs (“NARUC”) v. FCC, 737 F.2d 1095, 1121 (D.C. Cir. 1984) (emphasis added); see Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973); see also Kent County, Del. Levy Court v. EPA, 963 F.2d 391, 395-96 (D.C. Cir. 1992); Indep. U.S. Tanker Owners Comm. v. Lewis, 690 F.2d 908, 926 (D.C. Cir. 1982)." (p.12-13) (emphasis added)

FCC has redacted key technical reports before making them public.

"At issue are five scientific studies consisting of empirical data gathered from field tests performed by the Office of Engineering and Technology. Two studies measured specific Access BPL companies’ emissions, and three others measured location-specific emissions in pilot Access BPL areas in New York, North Carolina, and Pennsylvania. In placing the studies in the rulemaking record, the Commission has redacted parts of individual pages, otherwise relying on those pages. In responding to the League’s FOIA request, the Commission stated that “certain portions of [these] presentations have been redacted, as they represent preliminary or partial results or staff opinions that were part of the deliberative process, exempt from disclosure under Section 0.457(e) of the Commission’s rules and Section 552(b)(5) of the FOIA.” (p. 14)

My best guess is that the redacted information disagreed with top management's position and an attempt was made to "deep six" such information. Years ago, the FCC chairman wanted a vibrant internal discussion of issues pending before the Commission and wanted to hear varying viewpoints. Unfortunately in the past decade that has not been the case often, if at all, in technical issues. This is further complicated by the fact that the Bush Administration seems to view itself as a BPL "cheerleader" - perhaps to show it is doing something about the US's standing in broadband deployment vis-a-vis other countries. (Although it would not surprise me to find out someday that Jack Abramoff, or some similar high powered lobbyist, was key to the administration's fascination with BPL.)

Basically, the court dismissed the FCC's theory of why it was OK to redact the studies:

"It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment. “It is not consonant with the purpose of a rulemaking proceeding to promulgate rules on the basis of inadequate data, or on data that, [to a] critical degree, is known only to the agency.” Portland Cement Ass’n, 486 F.2d at 393; see NARUC, 737 F.2d at 1121. Where, as here, an agency’s determination “is based upon ‘a complex mix of controversial and uncommented upon data and calculations,’” there is no APA precedent allowing an agency to cherry-pick a study on which it has chosen to rely in part. See Solite Corp. v. EPA, 952 F.2d 473, 500 (D.C. Cir. 1991) (quoting Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1031 (D.C. Cir. 1978)); see also Kent County, 963 F.2d at 396; Indep. U.S. Tanker Owners Comm., 690 F.2d at 926; Sierra Club, 657 F.2d at 334, 398." (p. 15) (emphasis added)

More troubling is that fact that the court explicitly questions the FCC's technical judgment in radio propagation. In introducing its decision, the court said “Where a 'highly technical question' is involved, courts necessarily must show considerable deference to an agency’s expertise.” (p. 8) Thus the FCC would have to mess up a lot for the could to question its technical judgment in its core jurisdiction. But that is exactly what happened!

The Commission had decided to use the traditional "extrapolation factor" of 40 dB/decade for converting test measurements of BPL systems back to the nominal measurement distance specified in the rules. The problem is that 40 dB/decade is the clear answer for point sources like most Part 15 devices and not the clear answer for distributed sources like a medium voltage powerline.

"Nonetheless, the gaps in the Commission’s explanation for applying the pre-existing extrapolation factor to Access BPL systems demonstrate its inadequacy... (T)he Commission provided no explanation of how this circumstance justified retaining for Access BPL an extrapolation factor that was designed to accommodate technologies different in scale, signal power, and frequencies used." (p.20-21)

This last part of the court's decision is the most troubling. Either the 8th Floor dictated the technical answer to give the petitioners what they wanted or the Commission's technical staff was unable to explain their answer even with the deference the court gave it.

While this BPL decision is not important per se, it is a troubling sign that the Commission's technical policy decisions need to be bolstered if they are going to withstand even minimal court review. I hope this is done by strengthening the Commission's technical resources and bringing back to the 8th Floor staffers for the commissioners who are really interested in technical policy - they don't have to be degreed engineers or card-carrying IEEE members.

* I am a member of ARRL, but have not been involved in any of their activities dealing with BPL and have not agreed with all their positions on the topic.