Court finds FCC Violated APA continued ...

Page 5 Access Broadband over Power Line Court Decision

The League's related contention that the Commission has departed from its precedent in interpreting the relationship between section 301 and section 302 of the Act fares no better. The Commission stated in responding to the League's petition for reconsideration that because Access BPL systems are "capable of emitting [radio frequency] energy that can cause harmful interference to radio communications," they "fall under the Commission's jurisdiction as conferred by Section 302 of the Communications Act, rather than Section 301." Id. at 932728. The League misconstrues this statement to mean that the Commission is no longer regulating Access BPL under section 301.4 The League had argued that the Commission could not rely on section 302 and that there was no basis for a balancing test regarding harmful interference under section 301. See id. at 9327. The Commission's response, however, does not suggest either that Access BPL devices are not governed by section 301 at all or that the Commission is not invoking its authority under both sections in promulgating the rule. See id. at 9335; Order, 19 F.C.C.R. at 21,321. As the Commission offers, the statement appears to be a shorthand way of saying that the Commission has applied section 302's public interest standard to regulate Access BPL systems, as it has done in the past, because they operate in accordance with Part 15 rules rather than triggering the section 301 license requirement. Resp.'s Br. at 39; see Order, 19 F.C.C.R. at 21,275, 21,283; see also Amendment of Part 15 of the Commission's Rules to Allow Certification of Equipment, 16 F.C.C.R. 22,337, 22,341-42 (2001).


4 Although the League did not seek further reconsideration of this issue, we address it in view of its inclusion in the League's petition for reconsideration. See supra note 3.

More persuasive is the League's contention that the Commission has failed to comply with the APA by not disclosing in full certain studies by its staff upon which the Commission relied in promulgating the rule.

The APA requires an agency to publish "notice" of "either the terms or substance of the proposed rule or a description of the subjects and issues involved," in order to "give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments," and then, "[a]fter consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose." 5 U.S.C. 553(b)-(c). Longstanding precedent instructs that "[n]otice is sufficient 'if it affords interested parties a reasonable opportunity to participate in the rulemaking process,' and if the parties have not been 'deprived of the opportunity to present relevant information by lack of notice that the issue was there.'" WJG Tel Co., Inc. v. FCC, 675 F.2d 386, 389 (D.C. Cir. 1982) (citations omitted); see Fla. Power & Light Co. v. Nuclear Regulatory Comm'n, 846 F.2d 765, 771 (D.C. Cir. 1988).

Under APA notice and comment requirements, "[a]mong the information that must be revealed for public evaluation are the 'technical studies and data' upon which the agency relies [in its rulemaking]." Chamber of Commerce v. SEC (Chamber of Commerce II), 443 F.3d 890, 899 (D.C. Cir. 2006) (citation omitted). Construing section 553 of the APA, the court explained long ago that "[i]n order to allow for useful criticism, it is especially important for the agency to identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules." Conn. Light & Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 530

(D.C. Cir. 1982) (emphasis added). More particularly, "[d]isclosure of staff reports allows the parties to focus on the information relied on by the agency and to point out where that information is erroneous or where the agency may be drawing improper conclusions from it." Nat'l Ass'n of Regulatory Util. Comm'rs ("NARUC") v. FCC, 737 F.2d 1095, 1121 (D.C. Cir. 1984) (emphasis added); see Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973); see also Kent County, Del. Levy Court v. EPA, 963 F.2d 391, 395-96 (D.C. Cir. 1992); Indep. U.S. Tanker Owners Comm. v. Lewis, 690 F.2d 908, 926 (D.C. Cir. 1982).

Public notice and comment regarding relied-upon technical analysis, then, are "[t]he safety valves in the use of . . . sophisticated methodology." Sierra Club v. Costle, 657 F.2d 298, 334, 397-98 & n.484 (D.C. Cir. 1981) (citing cases); see Engine Mfrs. Ass'n v. EPA, 20 F.3d 1177, 1181-82 (D.C. Cir. 1994).

By requiring the "most critical factual material" used by the agency be subjected to informed comment, the APA provides a procedural device to ensure that agency regulations are tested through exposure to public comment, to afford affected parties an opportunity to present comment and evidence to support their positions, and thereby to enhance the quality of judicial review.

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