Court finds FCC Violated APA continued ...

Page 4 Access Broadband over Power Line Court Decision


The Commission has long interpreted section 301 of the Act to allow the unlicensed operation of a device that emits radio frequency energy as long as it does not "transmit[] enough energy to have a significant potential for causing harmful interference" to licensed radio operators. Revision of Part 15 of the Commission's Rules Regarding Ultra-Wideband Transmission Systems, 19 F.C.C.R. 24,558, 24,589 & n.179 (2004) ("Ultra-Wideband Order"); see Revision of Part 15 of the Rules, 4 F.C.C.R. 3493, 3493 (1989); Part 15 Incidental and Restricted Radiation Devices, 20 Fed. Reg. 10,055, 10,056 (Dec. 29, 1955). The League contends that in promulgating the rule the Commission has departed from its longstanding interpretation of section 301 as including an ex post shut-down requirement where harmful interference occurs "by forcing licensed users to accept harmful interference from unlicensed operations and permitting unlicensed [Access] BPL operators to continue their interference-generating activities." Pet.'s Br. at 21. The League does not dispute that an agency may change its position and depart from its precedent. See Action for Children's Television v. FCC, 821 F.2d 741, 745 (D.C. Cir. 1987) (citing Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970); State Farm, 463 U.S. at 42-43). Rather, the League contends that the Commission has done so without acknowledging the change or providing a reasoned explanation for it. This contention is not well taken.

The Commission determined, in accord with its precedent, that such interference as may remain from Access BPL emissions under the rule will not rise to the level of harmful interference for mobile radio operators in light of the nature of mobile antennae reception. See Order, 19 F.C.C.R. at 21,29495; Reconsideration Order, 21 F.C.C.R. at 9318-21, 9328. The rule requires Access BPL operators to reduce their signal by 20 dB if such harmful interference occurs to any radio operation. The Commission determined that for mobile operators the remaining interference after this "notch" "would not be significantly greater than the background noise at the distances normally used for protection against harmful interference." Reconsideration Order, 21 F.C.C.R. at 9319; see Order, 19 F.C.C.R. at 21,294. Consequently, the Commission concluded that "Access BPL signals [after a 20 dB reduction] will not constitute harmful interference to mobile, and in particular, amateur mobile communications." Reconsideration Order, 21 F.C.C.R. at 9320. This is because, the Commission found, "[t]he effect of [the Part 15 emission] limits will be to constrain the harmful interference potential of [Access BPL] systems to relatively short distances from the power lines that they occupy." Order, 19 F.C.C.R. at 21,282.

Put otherwise, the Commission has applied its longstanding definition of harmful interference in a new context without modifying its shut-down policy. Cf. Cassell, 154 F.3d at 483. The Commission implicitly determined that any interference that may occur beyond the required "notch" will not "seriously degrade[], obstruct[] or repeatedly interrupt[]" mobile radio under the Part 15 definition of "harmful interference." Order, 19 F.C.C.R. at 21,276 & n.51; Reconsideration Order, 21 F.C.C.R. at 9323 & n.89. Because the Commission determined that any Access BPL interference will never reach a harmful level of interference for mobile use, the shut-down rule simply will not be triggered for mobile operations. See Reconsideration Order, 21 F.C.C.R. at 9320. The clarification upon reconsideration is to the same effect.3 Not requiring an Access BPL operator to shut down unless harmful interference occurs reflects Commission precedent. See Order, 19 F.C.C.R. at 21,296; Reconsideration Order, 21 F.C.C.R. at 9316; see also Ultra-Wideband Order, 19 F.C.C.R. at 24,591. The League concedes that Commission precedent does not require the elimination of all interference at all times and all places for section 301's license requirement not to apply. See Pet.'s Reply Br. at 4. Contrary to the League's suggestion, then, the Commission's observation that mobile users could move, Order, 21 F.C.C.R. at 21,294, did not impose a new burden on mobile operators but simply recognized the nature of mobile use, see Reconsideration Order, 21 F.C.C.R. at 9318, 9320.

3 Although the League did not seek further reconsideration as Commission rules allow, see 47 C.F.R. 1.429(i), the Commission was previously alerted to the League's concern about preserving shutdown protection and has not contested the League's ability to raise this issue. Cf. Qwest Corp. v. FCC, 482 F.3d 471, 474 (D.C. Cir. 2007) (citing 47 U.S.C. 405(a)).

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