Court Examines BPL Interference with Mobile Ham Radio
Spending little time on statutory issues raised by the American Radio Relay League in its brief challenging the FCC’s broadband over power line rules, a panel of judges of the U.S. Appeals Court for the District of Columbia Circuit focused during oral arguments Tuesday on questions such as whether BPL emissions create harmful interference to mobile ham services and what is the FCC’s duty to make public the staff analyses the agency bases rules on.
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Urging the court to set aside the FCC’s BPL rules, the ARRL said the FCC’s reconsideration order requires that interference with fixed amateur radio operations must stop in all instances, but it “expressly withdraws that protection for licensed mobile operations.” Judge Brett Kavanaugh told ARRL lawyer Jonathan Frankel the interference might be temporary and not rise to the level of harmful interference. Judge David Tatel wanted to know whether there’s any evidence on the record, other than the ARRL’s, of harmful interference after notching.
Frankel urged the judges to study an ARRL submission on interference levels in Briarcliff Manor in New York to see “what interference sounds like.” He said the FCC is requiring mobile operators to move away from interference and that’s not practical: “You can’t drive perpendicularly off the road.” Kavanaugh said the FCC’s point is that because it’s temporary interference that doesn’t rise to harmful levels, a requirement to “cease operations does not apply to mobile.”
FCC Counsel Grey Pash said the FCC wasn’t putting the burden on mobile operators to move away. Moving is their defining feature, he said. The BPL rules were adopted specifically to protect ham radio and other licensed operators, he said, and the agency decided that the shut- down remedy wasn’t necessary for mobile.
Judges questioned both sides about ARRL’s contention that the FCC failed to reveal “significant information in the record that potentially contradicts its key interference findings” -- and that when it did respond to ARRL’s FOIA requests, it disclosed only parts of the studies, blacking out “virtually all discussion of evidence suggesting that BPL did in fact cause harmful interference.” In its brief, the FCC defended its actions, saying the court’s “precedent makes clear that an agency need not disclose internal staff analyses of publicly disclosed data, regardless of whether the agency accepts or rejects or ignores the staff analysis.”
Judge Judith Rogers said the agency could choose to adopt for its rules some of the staff recommendations and leave out others. Does that mean the agency should reveal staff analysis not relied on, she asked. Responding to a query from Tatel, Frankel said a review in a judge’s chambers of the material blacked out by the FCC wouldn’t fulfill requirements of the Administrative Procedures Act. The studies that the agency relies on should be available for public comment, he said, and in the case of the BPL order, the studies contain gaps.
It’s interesting that though the ARRL’s main argument in its brief was statutory -- saying the FCC was ruling that unlicensed devices aren’t subject to section 301 of the Communications Act -- the league didn’t bring it up until one of the judges raised the issue, said a lawyer who heard the arguments. “Given that it was one of their lead arguments in their brief it was kind of interesting they never raised it,” he said. “Once you strip that away, it becomes a technical difference of opinion and you know who is going to win that battle.”
But another lawyer differed, saying “the question of whether the FCC found there would never be harmful interference -- or whether they said if there was harmful interference you don’t have to correct it -- really went to the statutory argument.” He said it appeared that the judges were “kind of disturbed by the FCC’s sloppy decision-making process.” On the FCC’s defense for not providing all its staff analysis, a lawyer said EchoStar v. FCC is on the FCC’s side. That’s why the judges kept referring to the case, he said.
The court took away “two key elements” from the oral arguments, said attorney Mitchell Lazarus, who represents BPL provider Current Communications. One is the distinction between interference and harmful interference, he said. The “court understood that transitory interference is not harmful and the amateurs are not protected against it.” The amateurs were berating the FCC for not requiring that operations cease in case a 20 dB reduction in emission levels doesn’t work. The statute doesn’t require that, he said. It does require the FCC to protect the amateurs against harmful interference, but it doesn’t say how, he added: “The FCC opted to take a different route to protect the mobile operators than it took to protect the fixed users and that it may do under the statute.”