SpectrumTalk

Lessons Learned from BPL Court Case

I have previously written about the FCC's loss in the appeals court on BPL and the remand from the court. I don't think the specific details of this case are too important: most of the spectrum policy community probably doesn't care whether there is increased interference to a few amateur radio operators operating mobile at HF and BPL will probably die of its own accord anyway regardless of how FCC resolves this simply because it missed its market opportunity window a few years ago. Ironically, FCC probably could have given the BPL proponents everything they wanted if it had been intellectually honest in addressing the impact of BPL then and finding it in the public interest. (I must admit that the strong White House and 8th Floor interest in BPL always made me feel that some Jack Abramoff-like character was behind the scenes pulling strings.)

The July 2008 issue of QST, the ARRL's monthly magazine has an editorial on the BPL case. Below is a long excerpt from the editorial, reprinted with permission. Whether or not you are a fan of BPL it is interesting to note that this court setback for the FCC probably has had a dire effect on this technology, drying up capital investment in both technology development and deployment/rollout. The same thing could well happen to less controversial/more beneficial technologies unless FCC improves its act. While it may be tempting to blame the court, FCC sloppiness is a more likely cause for this mess.

The best course of action is to get these decisions on sound foundations the first time. There is a great temptation on both the 8th Floor and among some senior staff to "fuzzify" the technical implications of pending decisions. (I clearly remember during my OET days when I discovered that a senior manager was trying to hide from the top managers and the 8th Floor that fact that FAA was very concerned about a pending spectrum decision because he thought the FAA was wrong - they probably were but that didn't justify the coverup.)

Following some of the IEEE's suggestions in the previous post for improving decision making could help get some useful feedback into the system.

"This above all: to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man."

WILLIAM SHAKESPEARE, Hamlet, act I, scene iii, lines 78–80

QST Editorial excerpt:

On Friday, April 25 the United States Court of Appeals for the District of Columbia Circuit confirmed what the ARRL has been saying for years about how the FCC was handling the BPL interference issue: FCC prejudice tainted the rulemaking process.

In fact, the FCC’s mishandling of the issue was so egregious that the Court took an unusual step: it did not defer to the Commission’s presumed expertise on a highly technical issue.

The Court of Appeals found that the FCC violated the Administrative Procedure Act by not disclosing in full the staff studies on which the Commission relied. Writing for the three-judge panel that heard American Radio Relay League, Incorporated v. FCC and USA, the ARRL’s petition for review of the FCC’s Orders in ET Docket No. 04-37, Circuit Judge Judith W. Rogers said: “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…there is no APA precedent allowing an agency to ‘cherry-pick’ a study on which it has chosen to rely in part….The League has met its burden to demonstrate prejudice by showing that it ‘ha[s] something useful to say’ regarding the unredacted studies…that may allow it to ‘mount a credible challenge’ if given the opportunity to comment….Under the circumstances, the Commission can point to no authority allowing it to rely on the studies in a rulemaking but hide from the public parts of the studies that may contain contrary evidence, inconvenient qualifications, or relevant explanations of the methodology employed….no precedent sanctions such a ‘hide and seek’ application of the APA’s notice and comment requirements.” [Emphasis added.]

In a concurring opinion, Circuit Judge David S. Tatel wrote: “[I]n this very case the Commission redacted individual lines [emphasis in original] from certain pages on which it otherwise relied….there is little doubt that the Commission deliberately attempted to ‘exclude[] from the record evidence adverse to its position’ [emphasis added]….”

The Court also found that the Commission failed to justify its decision to apply an “extrapolation factor that was designed to accommodate technologies different in scale, signal power, and frequencies used” to Access BPL and that it “summarily dismissed… empirical data that was submitted at its invitation.” The Court found that the FCC’s Reconsideration Order “…provides neither assurance that the Commission considered the relevant factors nor a discernable path to which the court may defer.”

While the Court did not agree with us on every point, it found that the FCC’s decision-making process was seriously flawed. The Court concluded, “On remand, the Commission shall afford a reasonable opportunity for public comment on the unredacted studies on which it relied in promulgating the rule, make the studies part of the rulemaking record, and provide a reasoned explanation of its choice of an extrapolation factor for Access BPL systems.” In explaining its choice of an extrapolation factor the Commission must either “provide a reasoned justification for retaining an extrapolation factor of 40 dB per decade for Access BPL systems sufficient to indicate that it has grappled with the 2005 studies [three published studies suggesting that an extrapolation factor of 20 dB per decade may be more appropriate], or adopt another factor and provide a reasoned explanation for it.”

You can read the entire decision in American Radio Relay League, Incorporated v. FCC and USA at:
http://pacer.cadc.uscourts.gov/common/opinions/200804/06-1343-1112979.pdf.

The Court’s decision is a tremendous victory for radio amateurs and other licensed users of the radio spectrum – indeed, for anyone who cares about the integrity of the federal administrative process. Yet, the remand does not guarantee that the FCC will correct its errors. We face another round of technical arguments. No doubt the FCC’s technical staff, many of whom want to do the right thing, will remain under heavy pressure to ignore the laws of physics and give preference to wishful thinking once again. When the FCC reopens the BPL proceeding as the Court has ordered, we must leave no room for these technical issues to be settled on anything other than technical grounds. There’s more work to do!