FCC
Court finds FCC Violated APA continued ...

Page 11 Access Broadband over Power Line Court Decision

It is true, as we pointed out in Boswell Memorial, that APA section 706 “does allow review based not only on ‘the whole record,’ but also on ‘those parts of it cited by a party.’” 749 F.2d at 793 (quoting 5 U.S.C. § 706). Acknowledging that such an approach would sometimes be “fundamentally unfair,” id., however, we carefully circumscribed this possibility:

For review to go forward on a partial record, we would have to be convinced that the selection of particular portions of the record was the result of mutual agreement between the parties after both sides had fully reviewed the complete record. In that situation, we might naturally assume that the omitted portions did not materially affect either party’s case and, for our own convenience, review the case on that portion of the record cited by the parties.

Id.; see also 28 U.S.C. § 2112(b) (allowing review of partial record if all parties agree). Because the plaintiffs in Boswell Memorial were left in the dark about several documents that the agency later submitted in related cases, we refused to base our review on what we considered an incomplete record. Such an approach would have been unfair, we explained, because with “no check upon the failure of the agency to disclose information adverse to it, the normal pressures towards inclusion of all relevant material in the record before the court [we]re absent.” Id. Because here, as in Boswell Memorial, “review[ing] less than the full administrative record might allow a party to withhold evidence unfavorable to its case,” id. at 792, I agree that the appropriate course is to remand the case with an order to disclose the entire studies on which the Commission relied—warts and all.

KAVANAUGH, Circuit Judge, concurring in part, concurring in the judgment in part, and dissenting in part: To expand consumer access to broadband Internet services, increase competition against DSL and cable modem providers, and lower prices for consumers, the FCC adopted a rule to facilitate the use of electric power lines for broadband Internet access. The petitioner, an organization of amateur radio operators, has challenged this “Access Broadband Over Power Line Systems” rule. I agree with the majority opinion that the FCC’s rule complies with the Communications Act.

Applying the Administrative Procedure Act and our Portland Cement line of decisions, however, the majority opinion remands for the FCC to release redacted portions of certain FCC staff documents analyzing field tests of broadband over power lines. See Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 392-93 (D.C. Cir. 1973). In light of our precedents, I concur in the judgment on this point; but I write separately because of concerns about our case law in this area.

Applying the State Farm principle, the majority opinion also remands for the FCC to further explain why it chose to use a certain measurement, or “extrapolation factor,” to estimate the interference that broadband over power lines will cause to licensed radio services. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). I respectfully dissent from that holding because I believe the FCC sufficiently explained its reasoning.

I therefore join Parts I, IIA, and IID of the majority opinion. I concur in the judgment as to Part IIB, and I dissent from Part IIC.

I

In issuing its rule, the FCC relied on various technical studies, including an NTIA report; the various interference studies filed in the record, including petitioner’s studies; and the unredacted portions of certain internal FCC staff studies. Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Mem. Op. and Order, 21 F.C.C.R. 9308, 932425 ¶ 47 (2006). The FCC publicly disclosed all those materials. But the Commission did not release certain redacted portions of the internal staff studies on which it relied. Id. Citing § 553 of the APA, petitioner says the FCC must release the redacted portions of the staff studies so that interested parties can comment on them and so the FCC, in turn, can consider those comments.

Petitioner’s argument would be unavailing if analyzed solely under the text of APA § 553. The APA requires only that an agency provide public notice and a comment period before the agency issues a rule. See 5 U.S.C. § 553. The notice must include “the terms or substance of the proposed rule or a description of the subjects and issues involved.” § 553(b)(3) (emphasis added). After issuing a notice and allowing time for interested persons to comment, the agency must issue a “concise general statement” of the rule’s “basis and purpose” along with the final rule. § 553(c). One searches the text of APA § 553 in vain for a requirement that an agency disclose other agency information as part of the notice or later in the rulemaking process.

But beginning with the Portland Cement case in 1973 – which was decided in an era when this Court created several procedural requirements not rooted in the text of the APA – our precedents have required agencies to disclose, in time to allow for meaningful comment, technical data or studies on which they relied in formulating proposed rules. See Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 392-93 (D.C. Cir. 1973); see also Chamber of Commerce v. SEC, 443 F.3d 890, 899 (D.C. Cir. 2006); Connecticut Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 525, 530-31 & n.6 (D.C. Cir. 1982).


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