FCC
Court finds FCC Violated APA ...

Access Broadband over Power Line Court Decision

April 25, 2008, court decision

The United States Court of Appeals for the District of Columbia Circuit found the Federal Communications Commission violated the federal Administrative Procedure Act (APA) in making its Access Broadband over Power Line ("Access BPL") decision.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 23, 2007 Decided April 25, 2008

No. 06-1343

AMERICAN RADIO RELAY LEAGUE, INCORPORATED, PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS

AMBIENT CORPORATION, ET AL., INTERVENORS

On Petition for Review of Orders of the Federal Communications Commission

Jonathan J. Frankel argued the cause for petitioner. With him on the briefs were Christopher D. Imlay, William T. Lake, Dileep S. Srihari, and Daniel A. Zibel.

C. Grey Pash, Jr., Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Thomas O. Barnett, Assistant Attorney General, Robert B. Nicholson and Robert J. Wiggers, Attorneys, Samuel

L. Feder, General Counsel, Federal Communications Commission, Joseph R. Palmore, Deputy General Counsel, Richard K. Welch, Associate General Counsel, and John E. Ingle, Deputy Associate General Counsel.

George Y. Wheeler, John B. Richards, Thomas B. Magee, James N. Horwood, Tillman L. Lay, Jill Mace Lyon, Brett Kilbourne, Mitchell Lazarus, and Harry F. Cole were on the brief for intervenors.

Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Circuit Judge TATEL.

Opinion concurring in part, concurring in the judgment in part, and dissenting in part by Circuit Judge KAVANAUGH.

ROGERS, Circuit Judge: The American Radio Relay League, Inc., petitions on behalf of licensed amateur radio operators for review of two orders of the Federal Communications Commission promulgating a rule to regulate the use of the radio spectrum by Access Broadband over Power Line ("Access BPL") operators. The Commission concluded that existing safeguards combined with new protective measures required by the rule will prevent harmful interference to licensees from Access BPL radio emissions. The League challenges this conclusion, contending that the Commission has abandoned decades of precedent requiring shut-down and other protections for licensees and that the rule is substantively and procedurally flawed. We grant the petition in part and remand the rule to the Commission. The Commission failed to satisfy the notice and comment requirements of the Administrative Procedure Act ("APA") by redacting studies on which it relied in promulgating the rule and failed to provide a reasoned explanation for its choice of the extrapolation factor for Measuring Access BPL emissions.


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