[Waverley ARS] ARRL vs. FCC regarding BPL

Tue Oct 30 23:38:06 UTC 2007

Hi,

I thought some members might be interested in this.

de VK2KGG

George Georgevits

> 
>  ==> ARRL FACES FCC IN FEDERAL COURT OVER BPL ISSUES
> 
> On Tuesday, October 23, the ARRL faced the Federal Communications
> Commission in the US Court of Appeals over the continuing debate
> concerning harmful interference to licensed radio services from
> unlicensed Broadband over Powerline (BPL) systems. BPL is the delivery
> of broadband Internet communications using unshielded electrical wiring
> to conduct high-speed digital signals to homes and businesses. BPL
> systems are designed to conduct RF energy through unshielded, medium
> voltage power lines, using some or all of the HF spectrum between 1.7-80
> MHz. At those frequencies on unshielded overhead power lines, the
> electrical wiring not only conducts the signals, it radiates them very
> efficiently for very substantial distances from the power lines.
> 
> In October 2006, the League petitioned the United States 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 2006 Memorandum Opinion and Order
> which generally denied all of the 17 petitions for reconsideration. In
> its brief initially filed May 17, the ARRL contends, among other things,
> that the FCC's adoption of rules to govern unlicensed BPL systems
> fundamentally alter the longstanding rights of radio licensees,
> including Amateur Radio operators. Specifically, the FCC order, while
> adopting rules that it claimed would minimize instances of harmful
> interference to licensed services, eliminated a fundamental requirement
> for unlicensed devices, and held for the first time that BPL systems
> need not shut down in the case of unresolved instances of harmful
> interference to "mobile" stations.
> 
> The ARRL argues that the FCC's BPL rules violate Section 301 of the
> Communications Act, which requires that operators of devices that emit
> radio frequency energy which have a substantial interference potential
> cannot operate without 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 brief notes that extensive
> studies done by the National Telecommunications and Information
> Administration conclude persuasively that interference from BPL to
> mobile stations can be expected at distances up to almost a football
> field, and to fixed stations at distances up to five football fields.
> 
> The Commission then compounded its error by asserting that BPL devices
> do not fall within Section 301 at all, the League said. "This hail-Mary
> attempt at justification is another unexplained departure from prior
> policy that independently requires invalidation of the orders," the ARRL
> remarked in its brief.
> 
> 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."
> 
> Each side had 20 minutes to present their case, with the League going
> first. Attorney Jonathan Frankel, of the WilmerHale Law Firm, argued the
> case for ARRL before the three judge panel; Attorney C. Grey Pash, of
> the FCC General Counsel's office, argued for the FCC. According to ARRL
> President Joel Harrison, W5ZN, who attended the Court session, Frankel's
> argument centered on the removal of interference protection for licensed
> mobile stations, and the Commission's rules for measuring interference.
> "Frankel received multiple, direct questions from each of the judges
> concerning the topics in the briefs, and responded to each very well,"
> Harrison said.
> 
> "Judges Tatel, Rogers and Kavanaugh interrupted both sides repeatedly
> with intelligent, challenging questions," ARRL Chief Executive Officer
> David Sumner, K1ZZ, said. "For example," Sumner continued, "while
> quizzing Frankel, the judges sounded skeptical that interference to
> mobile stations couldn't simply be regarded as 'not harmful' because it
> was temporary; but then, when quizzing the FCC's attorney, Judge Tatel
> said in response to the statement that 'mobile stations could simply
> move,' that in the case of BPL in Manassas, Virginia for example, you
> can only get away from the interference by leaving Manassas.' It wasn't,
> he went on to say, like a garage door opener."
> 
> For the first time in decades, the FCC decided against requiring that
> operations found to cause "harmful interference" be shut down
> immediately -- a stance that ignores the "right of the license holder to
> be free from interference," Frankel said in court. The FCC has also
> withheld portions of studies that would "potentially" show BPL does
> cause harmful interference to other devices -- and ignored reports of
> tests the ARRL argues offer "substantial" evidence of interference
> problems, he continued. "We're talking about devices that radiate for
> football fields in length and all along power lines," Frankel said of
> the BPL gadgets. "When you drive down the street, [an Amateur Radio
> operator's] service is interrupted constantly."
> 
> "All three judges were clearly very familiar with the written record.
> They spent a lot of time on the issue of what information the FCC had
> withheld from public view (redacted)," Sumner said. "In the course of
> the argument, the FCC's attorney had to acknowledge that the
> Commission's explanations in the BPL proceeding were deficient in a
> number of respects, although it wasn't clear that administrative
> agencies are held to a very high standard in that regard."
> 
> Harrison said that Pash, the FCC's attorney, began his defense of the
> FCC orders and was almost "immediately interrogated" by the judges on
> the Commission's premise that "a mobile station in a licensed service
> should not be afforded complete protection from harmful interference
> just because it can just move away from the interference.
> 
> Pash also came under what Harrison called "considerable direct
> questioning" concerning the redacted material from the FCC's response to
> the ARRL's Freedom of Information request. ARRL had asked the FCC to
> produce all of what FCC described as "extensive" studies allegedly
> justifying its BPL order, on which the FCC relied in adopting the BPL
> rules. The FCC had deleted what appeared to be any material in that one
> single study that indicated that interference from BPL systems was
> likely. One page that was completely redacted was a Powerpoint slide
> titled "New Information Arguing for Caution on HF BPL." The FCC claimed
> that was not factual information, but just staff advice. Pash "attempted
> to present a position that the material pertained to 'staff opinion'
> that was determined to not be a basis for the FCC's decision," Harrison
> said. According to Pash, the redacted sections referenced earlier
> sections of the report, and were not "a bunch of new information,"
> Harrison added.
> 
> Pash defended the Commission's approach. He said the FCC didn't require
> the so-called "cease-operations" rule because it didn't find ample
> evidence that BPL posed any real potential for "harmful" interference.
> He said the studies the FCC relied upon, including one by the US
> National Telecommunications and Information Administration, found that
> so long as the FCC restricts the strength of the signals emitted by BPL
> devices -- as it did through its rules -- others sharing that spectrum
> "won't notice a difference" in the quality of their services.
> 
> Attorney Frankel reserved seven of his allotted 20 minutes for rebuttal
> of the FCC's arguments. He reiterated the League's position concerning
> mobile operations and also emphasized that "unless we have an
> opportunity to review the redacted material, no determination can be
> made as to its role in the FCC's rulemaking decision," Harrison said.
> 
> Both Sumner and Harrison said they were "quite impressed" with the
> knowledge that the judges had concerning the case and with the questions
> that they asked. Harrison said it could be "three months or more" before
> the Court announces its decision.  - Some information from cnet.com

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