Court finds FCC Violated APA continued ...

Page 3 Access Broadband over Power Line Court Decision

In reaching its "low"-likelihood conclusion, the Commission stated that "[t]he record and our investigations indicate that [Access] BPL network systems can generally be configured and managed to minimize and/or eliminate . . . harmful interference potential [to licensed radio services]." Id. at 21,266, 21,322. The Commission also relied on "information provided by our field tests," "our own field measurements of Access BPL installations," and "our own field testing." Id. at 21,275-76, 21,282, 21,296. Following issuance of the NOI, the League sought disclosure under the Freedom of Information Act ("FOIA") of the Commission's studies related to Access BPL systems. The Commission denied that request except as to one document that it placed in the record in the fall of 2003. When the League filed a second FOIA request citing the Order, the Commission released five studies in redacted form and made them part of the record in December 2004 after the rule was promulgated. The Commission stated that "[t]hese documents comprise internally-generated information upon which the Commission relied, in part, in reaching its determination." Submission by FCC Ofc. of Eng'g & Tech. to Sec'y (Dec. 22, 2004), filed in ET Docket Nos. 03-104 & 04-37.

The League sought reconsideration, and upon its denial, with a clarification,2 the League petitioned for review.

2 Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Carrier Current Systems ("Reconsideration Order"), 21

F.C.C.R. 9308 (Aug. 7, 2006). In responding to a request for clarification, the Commission added sub-section (iii) to 47 C.F.R. 15.611(c)(1), providing that:

[W]e will not require [an Access BPL operator who has followed the 20 dB "notch" procedure] to take further actions to resolve complaints of harmful interference to mobile operations.


The League seeks vacatur of the rule on four grounds. The League contends that: First, without acknowledging it, the Commission abrogated seventy years of precedent by invoking section 302 of the Act to authorize the operation of unlicensed devices that could interfere with licensed devices, and by no longer requiring them to cease operation if they actually cause harmful interference. Second, because "[t]he lynchpin" of the rule "is a series of studies conducted by the [Commission's] engineers" that have never been made available in unredacted form, their non-disclosure violates the APA's notice and comment requirements. Pet.'s Br. at 18. Third, the rule is based on a flawed assumption that Access BPL emissions under 30 MHz decay by 40 dB per decade; consequently, use of this extrapolation factor to measure Access BPL emissions is arbitrary and capricious given the absence of any evidentiary basis in the rulemaking record and the Commission's refusals to consider empirical evidence supporting a lower extrapolation factor of 20 dB per decade or an alternative sliding-scale formula. Fourth, the Commission failed to consider adequately a proposal to limit Access BPL systems to the frequency band between 30 and 50 MHz, as a "workable" way to ensure that they do not cause harmful interference in those frequencies "uniquely well-suited to licensed long-distance communications such as . . . amateur radio." Id. at 43-44. The Commission rejects all of these contentions.

Our review of the Commission's exercise of its regulatory authority is deferential, considering whether the Commission's action was arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 706(2); see 28 U.S.C. 2342(1); 47 U.S.C. 402. An agency need only articulate a "rational connection between the facts found and the choice made," Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted), and the court "will not intervene unless the Commission failed to consider relevant factors or made a manifest error in judgment," Consumer Elecs. Ass'n v. FCC, 347 F.3d 291, 300 (D.C. Cir. 2003). Where a "highly technical question" is involved, "courts necessarily must show considerable deference to an agency's expertise." MCI Cellular Tel. Co. v. FCC, 738 F.2d 1322, 1333 (D.C. Cir. 1984). At least "a modicum of reasoned analysis" is required, however. Hispanic Info. & Telecomms. Network, Inc. v. FCC, 865 F.2d 1289, 1297-98 (D.C. Cir. 1989). The court defers to an agency's reasonable interpretation of its governing statute consistent with Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984). An agency's interpretation of its own regulation is "'controlling' unless 'plainly erroneous or inconsistent with' the regulation[] being interpreted." Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339, 2349 (2007) (quotation marks and citations omitted); see Udall v. Tallman, 292 U.S. 1, 16-17 (1965); Cassell v. FCC, 154 F.3d 478, 483 (D.C. Cir. 1998).


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