Court finds FCC Violated APA continued ...

Page 2 Access Broadband over Power Line Court Decision


Under section 301 of the Communications Act, the owners and operators of "any apparatus for the transmission of energy or communications or signals by radio" are required to obtain a license as a condition of operation and they may not use or operate any such apparatus, for instance, "when interference is caused by such use or operation with the transmission of such energy, communications, or signals." 47 U.S.C. 301. Section 302 of the Act authorizes the Commission, "consistent with the public interest, convenience, and necessity," to promulgate regulations for manufacture and use governing "the interference potential of devices which in their operation are capable of emitting radio frequency energy . . . in sufficient degree to cause harmful interference to radio communications." Id. 302a(a). The Commission's rules, specifically Part 15, define "harmful interference" as "[a]ny emission, radiation or induction that endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommunications service." 47 C.F.R. 15.3(m). The rules governing unlicensed devices also include two provisions to protect licensed radio operators from unlicensed devices: an ex ante precondition of operation that a device not cause "harmful interference," id. 15.5(b), and an ex post requirement that a device "cease" operation if "harmful interference" occurs, id. 15.5(c).

The Commission, upon concluding that "the introduction of new high-speed [Access] BPL technologies warrants a systematic review of the Part 15 rules in order to facilitate the deployment of this new technology, promote consistency in the rules and ensure the ongoing protection of the licensed radio services," issued a notice of inquiry. Notice of Inquiry, Carrier Current Systems, Including Broadband Over Power Line Systems ("NOI"), 18 F.C.C.R. 8498, 8503 (April 28, 2003). Therein it stated that in the process of Access BPL transmission, devices installed along electric power lines transmit radio frequency energy over the 1.7 - 80 MHz spectrum, creating potential to interfere with the ability of nearby radio operators to send and receive signals on the same frequencies. Id. at 8499500, 8505-06. Licensed radio operators on this part of the spectrum include public safety and federal government agencies, aeronautical navigation, maritime, radio-astronomy, citizen band radio, and amateur radio operators. Id. at 8506. Subsequently, in announcing a proposed rule, the Commission stated that its policy was to "promote and foster the development of [the] new technology [Access BPL] with its concomitant benefits while at the same time ensuring that existing licensed operations are protected from harmful interference." Notice of Proposed Rule Making, Carrier Current Systems, Including Broadband Over Power Line Systems ("NPRM"), 19 F.C.C.R. 3335, 3355 (Feb. 23, 2004).

In the final rule the Commission defined Access BPL and set technical and administrative requirements to protect licensed radio operators from harmful interference. See Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Carrier Current Systems ("Order"), 19 F.C.C.R. 21,265, 21,284302 (Oct. 28, 2004). To protect licensed operators, the rule requires Access BPL manufacturers and operators to comply with certification requirements and emission limits, and establishes a nationwide database of Access BPL operations in order to facilitate identification of a source of interference and its resolution. Id. at 21,282, 21,300, 21,316. Access BPL operations also must have the capability, from a central location, to reduce or "notch" operating power, to avoid or adjust frequencies, and to shut down segments of their operations entirely when necessary to resolve licensees' complaints of "harmful interference." Id. at 21,291-96. To protect government, aeronautical, and public safety operations, Access BPL operators must avoid certain frequencies and certain geographic areas, notify and consult with public safety users before beginning operations, and resolve public safety users' complaints of harmful interference within 24 hours. Id. at 21,287-89, 21,301-02. The Commission retained the existing extrapolation factor of 40 decibels ("dB") per decade1 for frequencies below 30 MHz to measure Access BPL emissions and any resulting interference. Id. at 21,309-12.

The Commission acknowledged that "some cases of harmful interference may be possible from Access BPL emissions at levels up to the Part 15 limits" but it was satisfied that "the benefits of Access BPL service warrant acceptance of a small and manageable degree of interference risk." Id. at 21,276. The Commission concluded that the risk of such harmful interference was "low." Id. at 21,275; see id. at 21,283. Regarding mobile operations, such as amateur radios in automobiles, the Commission concluded that the requirement that Access BPL operators "notch" their emitted power to a level at least 20 dB below emission limits on a frequency band would be "generally . . . sufficient to resolve any harmful interference that might occur to mobile operations." Id. at 21,294. The Commission referenced its findings that "[only] low signal levels [are] allowed under the Part 15 emission limits" and that "a mobile transceiver can readily be re-positioned to provide some separation from the Access BPL operation." Id.

1 Decibels per decade are used to measure the extrapolation factor. A "decade," which is a "10:1 range, refers to the ratio of the specified measurement distance to the actual measurement distance." Order, 19 F.C.C.R. at 21,303 n.181.

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