Court finds FCC Violated APA continued ...

Page 12 Access Broadband over Power Line Court Decision

The majority opinion concludes that the Portland Cement requirement does not allow the FCC to redact portions of studies when the studies otherwise must be disclosed under Portland Cement. I accept the majority opinion’s conclusion as the best interpretation of our Portland Cement line of decisions.

I write separately to underscore that Portland Cement stands on a shaky legal foundation (even though it may make sense as a policy matter in some cases). Put bluntly, the Portland Cement doctrine cannot be squared with the text of § 553 of the APA. And Portland Cement’s lack of roots in the statutory text creates a serious jurisprudential problem because the Supreme Court later rejected this kind of free-form interpretation of the APA. In its landmark Vermont Yankee decision, which came a few years after Portland Cement, the Supreme Court forcefully stated that the text of the APA binds courts: Section 553 of the APA “established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.” Vermont Yankee Nuclear Power Corp. v. National Res. Def. Council, Inc., 435 U.S. 519, 524 (1978) (emphasis added); see also Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 SUP. CT. REV. 345, 395-96 (Vermont Yankee was “a major watershed. It has put to rest the notion that the courts have a continuing ‘common-law’ authority to impose procedures not required by the Constitution in the areas covered by the APA.”).

Because there is “nothing in the bare text of § 553 that could remotely give rise” to the Portland Cement requirement, some commentators argue that Portland Cement is “a violation of the basic principle of Vermont Yankee that Congress and the agencies, but not the courts, have the power to decide on proper agency procedures.” Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75 GEO. WASH. L. REV. 856, 894 (2007). At the very least, others say, the Supreme Court’s decision in Vermont Yankee raises “a question concerning the continuing vitality of the Portland Cement requirement that an agency provide public notice of the data on which it proposes to rely in a rulemaking.” 1 RICHARD J. PIERCE, ADMINISTRATIVE LAW TREATISE § 7.3, at 435 (4th ed. 2002).

I do not believe Portland Cement is consistent with the text of the APA or Vermont Yankee. In the wake of Vermont Yankee, however, this Court has repeatedly continued to apply Portland Cement (albeit without analyzing the tension between Vermont Yankee and Portland Cement). In these circumstances, this three-judge panel must accept Portland Cement as binding precedent and must require the FCC to disclose the redacted portions of its staff studies. I therefore concur in the judgment as to Part IIB of the majority opinion.


The majority opinion also holds that the FCC did not provide a sufficiently “reasoned explanation” for its choice of an extrapolation factor to measure interference from broadband over power lines. I disagree.

The FCC estimates the radio-frequency interference caused by broadband over power lines to determine whether broadband over power lines will cause unlawful “harmful interference” to licensed radio operators. In selecting guidelines to estimate interference, the FCC has adhered to a pre-existing “extrapolation factor” that it already used to estimate interference caused by broadband over power lines and other regulated technologies. Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Carrier Current Systems, Report and Order, 19 F.C.C.R. 21265, 21310 ¶ 109 (2004). The National Telecommunications and Information Administration, a federal agency within the Department of Commerce, provided data supporting the existing extrapolation factor. Id. Another commenter, Ameren Energy Communications, also advocated this measurement. Id. By contrast, Aeronautical Radio, Inc. and ARRL, the petitioner here, sought the use of a different extrapolation factor. Id.

Given the “lack of conclusive experimental data” and disagreements among commenters, the Commission stated that it would continue to use the existing extrapolation factor. Id. The Commission added that it would “revisit” the issue if new information became available. Id.

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