ARRL files federal appeals court brief in petition for
review of BPL rules

The ARRL has filed a federal appeals court brief outlining its case and requesting oral arguments in its petition for review of the FCC's broadband over power line (BPL) rules.

The League has petitioned the US Court of Appeals for the DC Circuit to review the FCC's October 2004 Report and Order (R&O) in ET Docket 04-37 and its 2006 Memorandum Opinion and Order.

In its brief filed May 17, the ARRL contends, among other things, that the FCC's actions in adopting rules to govern unlicensed BPL systems fundamentally alter the longstanding rights of radio spectrum licensees, including Amateur Radio operators.

"For the first time ever, the FCC has permitted new unlicensed devices to operate in spectrum bands already occupied by licensees, even if the unlicensed operations cause harmful interference to the licensees," the League said in stating its case. "The orders under review reverse nearly seven decades of consistent statutory interpretation and upset the settled expectations of licensees without so much as acknowledging the reversal, let alone justifying it."

The ARRL argues that the FCC's approach to adopting rules to govern BPL flies in the face of Section 301 of the Communications Act, which requires that operators of devices that emit radio frequency energy first obtain an FCC license. "For years, the FCC has consistently read Section 301 to apply to unintentional radiators, such as BPL devices, and has expressly embodied that interpretation in its rules," the League's brief recounts.

The Commission then compounded its error by asserting that BPL devices do not fall within Section 301 at all, the League said.

The ARRL contends that the FCC orders under review "jeopardize the license rights of ARRL's members and other license holders by authorizing providers of a new device -- Access Broadband over Power Lines, or 'BPL' -- to send radio signals across the electric grid in the frequencies the license holders occupy, but without having to obtain an FCC license."

The League's brief further asserts that the FCC "has failed to
discuss or disclose significant information in the record that
potentially contradicts its key interference findings." The
Commission not only withheld its internal studies until it was too late to comment, the ARRL alleges, but has yet to release portions of studies that may not support its own conclusions.

The ARRL wants the appeals court to determine if the Commission acted in an arbitrary and capricious manner for not disclosing "significant information that potentially contradicts its key interference finding," the League said in its brief.

The League also has taken issue with what it argues is the FCC's "arbitrary and capricious" adoption of a BPL emission measurement standard that's unsupported by the record in the proceeding and ignores contrary evidence.

The ARRL brief asserts that, for the first time ever, the FCC "has authorized the operation of unlicensed devices that it concedes interfere with licensed devices" and has declared that such devices "may continue operating even where proven to cause interference."

The FCC, ARRL contends, has concluded that BPL's acknowledged interference risks are manageable, but it bases that conclusion -- which ARRL calls "the linchpin of the challenged orders" -- on FCC studies the Commission has declined to make public in unedited form.

The FCC's response to the League's brief is due July 2.

Source: The American Radio Relay League