New Docs Show
FCC Glossed Over BPL Flaws

Surprising, well, nobody

by Karl Bode
(Reprinted with permission from dslreports.com)

The relationship between the FCC and ham operators has always been a contentious one, due to BPL's interference potential and the FCC's rather, uh, over-enthusiastic promotion of the flawed technology. As part of an effort to pretend their pro-incumbent policies resulted in something more than an uncompetitive duopoly, the agency used to call BPL the "great broadband hope." Hams have always alleged that the agency ignored interference data for the benefit of the BPL industry.

Interestingly, the American Radio Relay League (ARRL) has obtained and published on its website FCC studies it had obtained from a Freedom of Information Act (FOIA) request it filed at the end of March. In October of 2007 the ARRL filed suit against the FCC, alleging that the FCC had held studies on BPL that may not have supported its own position on BPL until it was too late to comment on them. The FCC dismissed these documents as "internal communications" that did not factor in on its decision to adopt the BPL rules.

The FCC fought releasing the documents for years, until new FOIA rules implemented by the Obama administration finally resulted in the documents being released earlier this week. The studies show, among other things, that the FCC redacted, manipulated and ignored data in order to support their own position that power lines were perfectly suited to broadband, while ignoring advise from numerous providers and vendors in the sector.

The FCC chose to ignore the findings from a 2003 study that plainly stated that BPL was not a point source.
View PDF of original and redacted version

That's in line with previous criticisms levied at the the way former FCC boss Kevin Martin ran the agency. In Martin's FCC, objective science and real data were an afterthought to political agendas or fealty to industry lobbyists. Even employees within the FCC complained that the agency had become a political animal that frequently ignored or violated the commission's own guidelines at the whims of Chairman Martin.

Unfortunately for Martin and the FCC, all of their BPL cheerleading efforts came to naught. With the recent closure of several of the technology's highest-profile trials, BPL exists as little more than a fringe player being used in very select rural locations to provide connectivity. Most of the BPL vendors the FCC was presumably working for have since moved on to promote smart electrical grid functionality.

Another example of FCC "redaction"
View PDF of original and redacted version

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ars technica has a more detailed and more scathing discussion of what was revealed with the ARRL FOIA request entitled "Did the FCC cook the books on broadband over power lines?" The blog part of the article has the following input from "tetrault":

"So, when will the Obama administration announce that the Office of the Inspector General has opened an investigation of the FCC to determine who altered the data, why they altered the data, and whether there was outside influence (bribery)? Is your guess "never"? The Obama administration prefers big businesses that it can control (and get bribes from) to little guys such as ham radio operators. Therefore, no investigation will occur."

Actually an interesting idea, although readers may recall I have little faith in the present FCC IG.

Meanwhile our congratulations to Steve Martin of the FCC Lab (shown in photo at left from an IEEE meeting)who was the original author of the redacted document. He is the only one in this mess who emerged as a hero. (I suspect some of Steve's supervisor's may have supported him, but we will probably never find out.)

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!

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.