FCC BPL Orders Junk Precedent on Interference, Says ARRL
In making final BPL rules, the FCC tossed aside, “without even acknowledging the change, let alone justifying it,” 70 years of precedent that Sec. 301 of the Communications Act allows operation of unlicensed devices only when they can’t interfere harmfully with licensed operations, the American Radio Relay League (ARRL) said in a brief to the U.S. Appeals Court, D.C. The ARRL wants the court to set aside the 2004 FCC BPL report and order and an Aug. 2005 reconsideration order. NAB and MSTV support ARRL. The United Telecom Council and BPL providers like Current Communications back the FCC.
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The reconsideration order requires BPL operators to cut emissions 20 dB in any frequency where harmful interference occurs, but no such restrictions apply to interference with mobile ham radio licensees, ARRL said. That means the order strips mobile operators of assurance under FCC Part 15 rules that devices operate under the condition that “transmission must cease if the Part 15 devices cause harmful interference,” it said. Saying the FCC didn’t even acknowledge the departure from its longstanding reading of Sec. 301, the group cited Bush-Quayle ‘92 v. FEC to say that an “agency interpretation that would otherwise be permissible is, nevertheless, prohibited when the agency has failed to explain its departure from prior precedent.”
The FCC didn’t try to reconcile its authorization of interference-causing unlicensed devices with Sec. 301’s requirement that they be licensed, the ARRL said. Instead, the FCC “engaged in misdirection” by declaring in its reconsideration order that BPL devices don’t fall under Sec. 301 because they're “unintentional radiators,” not communications systems, the group said: “That assertion is such a radical departure from the FCC’s prior reading of the Act that it stands as a virtual concession that reconciling these [BPL] orders with Sec. 301 would be impossible.”
The agency failed to reveal “significant information in the record that potentially contradicts its key interference findings,” the amateur radio group said. The BPL orders rest on a Commission conclusion that harmful interference to licensed users could be managed, it added. The FCC initially didn’t reveal results of its interference studies, the ARRL said. And when it did respond to ARRL FOIA requests, it disclosed only parts of the studies, redacting “virtually all discussion of evidence suggesting that BPL did in fact cause harmful interference,” it said. For instance, of the latest study, 7 of 21 pages were deleted except for the headings, which referred to “caution” and “tradeoffs” regarding spectrum that ARRL members use, it said.
The FCC stance on withholding material is “self- contradictory,” the ARRL said. The FCC said in the reconsideration order that it relied on its “internally conducted studies as described in the material provided in the FOIA response to ARRL” but also asserted that the “redacted portions of the FOIA’s content referred to internal communications that were not relied upon in the decision- making process,” the ARRL said. The FCC can’t have it both ways -- relying on internal studies when they support its conclusions, but “disavowing the same studies and withholding them from public view to the extent they do not,” the group said.
The FCC could have promoted BPL without risk of interference to licensed users if it hadn’t rejected requests by ARRL and others that it limit BPL systems to the 30 MHz-50 MHz band, the ARRL said. Current Communications, the largest and the most successful BPL operator, does operate in the band; other BPL providers expressed enthusiasm for operating in the band early in the BPL proceeding but sought higher emission limits, the ARRL said.