ARRL files Federal Court of Appeals Reply Brief over BPL

On July 31, the ARRL filed its reply brief at the US Court of Appeals for the District of Columbia Circuit. This brief follows the FCC's brief that attempted to rebut the ARRL's challenge to the FCC's Broadband over Power Line (BPL) rules enacted in late 2004 and affirmed by the agency in 2006.

According to ARRL General Counsel Chris Imlay, W3KD, "The FCC's brief does not accurately describe ARRL's arguments concerning harmful interference." The ARRL, in its reply brief, accuses the FCC of, "engaging in misdirection -- rebutting hyperbolic arguments ARRL never made, refusing to address the precedents ARRL cited and attempting to rewrite the Orders as if they made factual rather than legal determinations."

The League's reply brief, according to Imlay, "focuses largely on the FCC's unprecedented failure to protect mobile stations from interference if the BPL operator reduces its radiated emissions by 20 dB below the Part 15 maxima, even if harmful interference persists thereafter. The reply brief also addresses the inapplicability of the 40 dB per decade of distance extrapolation factor applied to BPL system measurements in the high frequency bands."

The ARRL's reply brief looked at four main points:

• The FCC's failure to reconcile the Orders with the FCC's decades-old interpretation of Section 301.

• The FCC's failure to justify its nondisclosures of portions of the studies on which the Orders were expressly based.

• The FCC's failure to justify its refusal to consider contrary
evidence, as well as a proposed alternative to its extrapolation factor for measuring interference.

• The FCC's failure to justify its summary dismissal of an alternative that could have accommodated BPL without causing the same harmful interference.

The ARRL's brief states that this case "is about an unlicensed operator's legal duty to cease harmful interference once it arises, not the standard for authorizing unlicensed transmissions."

For decades, the FCC has interpreted Section 301 to mandate two restrictions on unlicensed operators: The proposed operations will not have a significant potential for causing harmful interference, and; if harmful interference does occur, the unlicensed operations are to cease immediately. For the first time ever, the FCC excluded mobile operators from the second part of the mandate.

The FCC suggests in its brief that BPL emissions (that are reduced by the 10 or 20 dB that are the minimum notching requirements in the rules) will "never cause harmful interference to licensed mobile users, but there is no evidence to support this," the ARRL's brief states. The ARRL
contends the FCC's brief "ignore[s] the express acknowledgement in the Reconsideration Order that 'harmful interference...may occur' even when BPL systems meet the FCC's technical standards and that when it occurs 'we will not provide further protection to mobile operations.'"

The FCC goes on to say, according to the ARRL's brief, that licensed mobile users "do not need the protection of the cease-operations rule because mobile users suffering from interference can move elsewhere." The ARRL contends that the FCC "has never before put the burden on the license-holder to move away from an unlicensed interferor, to the
contrary, its rules require the interferor to cease interfering
immediately. A BPL system deploys radiation-emitting devices ubiquitously throughout a service area, making it difficult to avoid harmful interference and impossible to conclude that harmful interference will 'never' occur."

The ARRL's brief states that "the FCC cites nothing to defend the Reconsideration Order's ruling that Section 301 is inapplicable to 'unintentional radiators.'" The ARRL's brief points out that the FCC's brief "fails to defend the Reconsideration Order's holding that unintentional radiators like BPL devices 'as such' are outside the scope of Section 301's license requirement. The brief actually admits the
contrary -- that unintentional radiators are within Section 301." The FCC's brief mentions "but fails to acknowledge Section 302, which extended the FCC's authority to cover the manufacture and sale of interfering devices, is irrelevant to the scope of Section 301."

In its brief, the FCC failed to justify its "nondisclosure of
significant portions of the technical studies on which the Orders rely." Instead, the ARRL said the FCC "attacks a straw man, suggesting that ARRL is after 'every internal document in its entirety that the agency's staff prepares in relating to a rule making proceeding."

The ARRL's brief states that the League only sought the full texts of the studies that the FCC "identified and cited as the basis for its conclusions. An agency may not cherry-pick the pages of the studies on which it relies, disclosing the ones that support its conclusions and redacting the others."

The FCC's brief requests that the Court defer to its "technical judgment in adopting an extrapolation factor to measure interference." The ARRL contends that the FCC "is not entitled to deference where it refuses to consider substantial evidence submitted to it -- in this instance, at the agency's invitation -- and fails to consider a responsible alternative proposal."

The ARRL points out three studies conducted by OFCOM, the UK-equivalent to the FCC. Each study reached a conclusion opposite that of the FCC and "plainly were significant to warrant consideration," the League's brief said. "ARRL's proposed sliding-scale extrapolation factor was an alternative entitled to consideration and a reasoned explanation for its rejection."

The ARRL makes the argument in its brief that it proposed a "win-win" solution: Authorize BPL, but "confine it to a generous frequency band that does not present these interference problems." It makes note of the fact that the largest BPL operator has designed its systems this way, and suggests that other operators could follow suit.

Yet the FCC in its brief brushed off these suggestions with a terse, two word sentence: "The other proposed 'solution' - complete avoidance of all HF frequencies - would needlessly restrict BPL design and reduce system capacity, without regard to whether there are amateurs that need protection from a particular BPL installation. This would result in a
grossly inefficient utilization of Access BPL capacity, reducing the potential benefits of BPL and increasing its costs to the public, without a corresponding benefit or need."

ARRL, therefore, asked the Court in its brief "to enforce the FCC's 'duty to consider responsible alternatives to its chosen policy and to give a reasoned explanation for its rejection of such alternatives.'"

Pointing out the "multiple legal errors in the Orders," the ARRL stated in the brief that the FCC "require[d] a remand. When the Court remands the Orders, it should direct the FCC to give this alternative the careful consideration required by law."

The ARRL's reply brief can be read in its entirety on the ARRL Web site http://www.arrl.org/tis/info/HTML/plc/
Court_Appeal_ReplyBrief2007july31.pdf.

Source: The American Radio Relay League