Court finds FCC Violated APA continued ...

Page 6 Access Broadband over Power Line Court Decision

Chamber of Commerce II, 443 F.3d at 900 (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 745 F.2d 677, 684 (D.C. Cir. 1984)). Enforcing the APA's notice and comment requirements ensures that an agency does not "fail[] to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary" so that "a genuine interchange" occurs rather than "allow[ing] an agency to play hunt the peanut with technical information, hiding or disguising the information that it employs." Conn. Light & Power Co., 673 F.2d at 530-31. The failure to disclose for public comment is subject, however, to "the rule of prejudicial error," 5 U.S.C. 706, and the court will not set aside a rule absent a showing by the petitioners "that they suffered prejudice from the agency's failure to provide an opportunity for public comment," Gerber v. Norton, 294 F.3d 173, 182 (D.C. Cir. 2002), in sufficient time so that the agency's "decisions . . . [may be] framed with . . . comment in full view," NARUC, 737 F.2d at 1121.

At issue are five scientific studies consisting of empirical data gathered from field tests performed by the Office of Engineering and Technology. Two studies measured specific Access BPL companies' emissions, and three others measured location-specific emissions in pilot Access BPL areas in New York, North Carolina, and Pennsylvania. In placing the studies in the rulemaking record, the Commission has redacted parts of individual pages, otherwise relying on those pages. In responding to the League's FOIA request, the Commission stated that "certain portions of [these] presentations have been redacted, as they represent preliminary or partial results or staff opinions that were part of the deliberative process, exempt from disclosure under Section 0.457(e) of the Commission's rules and Section 552(b)(5) of the FOIA." Letter from Edmond Thomas, Chief, FCC Ofc. of Eng'g & Tech., to Christopher Imlay, Gen. Counsel, Am. Radio Relay League (Jan. 4, 2005). Upon reconsideration, the Commission reaffirmed that "the redacted portions . . . referred to internal communications that were not relied upon in the decision making process," while reiterating that Commission statements in the Order "point" to the partially redacted studies -- including the Commission's "own field investigations of [Access] BPL experimental sites" -- and "clarify[ing] that in this proceeding, the Commission relied . . . on its own internally conducted studies." Reconsideration Order, 21 F.C.C.R. at 9324-25. The court, pursuant to the Commission's offer, Resp.'s Br. at 44 n.35, has reviewed in camera the partially redacted pages in unredacted form; they show staff summaries of test data, scientific recommendations, and test analysis and conclusions regarding the methodology used in the studies. All pages in the studies are stamped "for internal use only."

It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment. "It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that, [to a] critical degree, is known only to the agency." Portland Cement Ass'n, 486 F.2d at 393; see NARUC, 737 F.2d at 1121. Where, as here, an agency's determination "is based upon 'a complex mix of controversial and uncommented upon data and calculations,'" there is no APA precedent allowing an agency to cherry-pick a study on which it has chosen to rely in part. See Solite Corp. v. EPA, 952 F.2d 473, 500 (D.C. Cir. 1991) (quoting Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1031 (D.C. Cir. 1978)); see also Kent County, 963 F.2d at 396; Indep. U.S. Tanker Owners Comm., 690 F.2d at 926; Sierra Club, 657 F.2d at 334, 398.

The League has met its burden to demonstrate prejudice by showing that it "ha[s] something useful to say" regarding the unredacted studies, Chamber of Commerce II, 443 F.3d at 905, that may allow it to "mount a credible challenge" if given the opportunity to comment, Gerber, 294 F.3d at 184 (citation omitted); see Owner-Operator Indep. Drivers Ass'n, Inc. v. Fed. Motor Carrier Safety Admin., 494 F.3d 188, 202-03 (D.C. Cir. 2007). As suggested by the League, the partially redacted pages indicate that a study's core scientific recommendations may reveal the limitations of its own data and that its conclusions may reveal methodology or illuminate strengths and weaknesses of certain data or the study as a whole. For example, the League points to the unredacted headings of otherwise redacted pages referring to "New Information Arguing for Caution on HF BPL" and "BPL Spectrum Tradeoffs," subjects on which it seeks the opportunity to comment. FCC Lab., BPL Summary After Briarcliff Manor, NY Test, Sept. 8, 2004, at 17, filed in ET Docket Nos. 03-104 & 04-37. The unredacted pages thus appear to "contain information in tension with the [Commission's] conclusion" that "[Access] BPL's acknowledged interference risks are 'manageable.'" Pet.'s Br. at 18 (quoting Order, 19

F.C.C.R. at 21,276). Allowing such "omissions in data and methodology" may "ma[ke] it impossible to reproduce" an agency's results or assess its reliance upon them. City of Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153, 1168 (D.C. Cir. 1987); see also Sierra Club, 657 F.2d at 334, 397-98; United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977).

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