Page 8 Access Broadband over Power Line Court Decision
On remand, the Commission shall make available for notice and comment the unredacted “technical studies and data that it has employed in reaching [its] decisions,” Conn. Light & Power Co., 673 F.2d at 530; see Chamber of Commerce II, 443 F.3d at 903; Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1403 (9th Cir. 1995); see also Mortgage Investors Corp. v. Gober, 220 F.3d 1375, 1380 (Fed. Cir. 2000), and shall make them part of the rulemaking record. In view of the remand, the court does not reach the League’s contention that the late disclosure of redacted portions of the studies also violated the APA.
The League also challenges the Commission’s decision to retain the extrapolation factor of 40 dB per decade to measure Access BPL radio emissions at frequencies below 30 MHz, which is the band primarily used by amateur radio operators, as unsupported by empirical evidence.
The “distance extrapolation factor” is the projected rate at which radio frequency strength decreases from a radiation-emitting source, used to estimate signal decay for Access BPL and resulting interference to radio operators at various distances from a source without actually measuring such emissions. See Order, 19 F.C.C.R. at 21,303; NOI, 18 F.C.C.R. at 8508; 47
C.F.R. § 15.31(f). The Commission’s Part 15 rules, § 15.31(f)(2), include a generally applicable extrapolation factor of 40 dB per decade for any device that may have potential to interfere with licensed operators at frequencies below 30 MHz. The Commission acknowledged that the extrapolation factor “is an important consideration in determining compliance with the emission limits in the rules” because “[i]f the extrapolation factor is 20 dB per decade instead of 40 dB per decade, the correction factor would be smaller, thus resulting in higher value for the transmitted emission levels [of Access BPL devices].” Reconsideration Order, 21 F.C.C.R. at 9317 & n.55; see Order, 19 F.C.C.R. at 21,316. Nonetheless, the gaps in the Commission’s explanation for applying the pre-existing extrapolation factor to Access BPL systems demonstrate its inadequacy. Cf. Hispanic Info. & Telecomms. Network, Inc., 865 F.2d at 1297-98.
The League points out that to confirm its choice of a 40 dB per decade factor the Commission relied on modeling data using a method of measurement that is not based on empirical evidence derived from testing or scientific observation. See Order, 19 F.C.C.R. at 21,310; Reconsideration Order, 21 F.C.C.R. at 9318. Assuming that modeling may prove instructive, the comments to which the Commission points, see Order, 21 F.C.C.R. at 21,265; Reconsideration Order, 21 F.C.C.R. at 9318, at best suggest an alternative interpretation of empirical data reported by the National Telecommunications and Information Administration (“NTIA”). But the NTIA study itself casts doubt on the Commission’s decision to retain the preexisting extrapolation factor rather than suggesting that factor was appropriate for the new technology of Access BPL.5 The Commission also relied on the NTIA’s latest computer modeling results, but these results were not part of the rulemaking record. See Order, 19 F.C.C.R. at 21,310. Although indicating that it was confronted with a “lack of conclusive experimental data pending large scale Access BPL deployments,” Order, 19 F.C.C.R. at 21,310; Reconsideration Order, 21 F.C.C.R. at 9318, the Commission provided no explanation of how this circumstance justified retaining for Access BPL an extrapolation factor that was designed to accommodate technologies different in scale, signal power, and frequencies used. See NOI, 18 F.C.C.R. at 8498, 8501; Order, 19 F.C.C.R. at 21,266.
5 See NTIA, POTENTIAL INTERFERENCE FROM BROADBAND OVER POWER LINE (BPL) SYSTEMS TO FEDERAL GOVERNMENT RADIOCOMMUNICATIONS AT 1.7 -80 MHZ, PHASE 1 STUDY 7-1 (Apr. 27, 2004), filed in ET Docket Nos. 03-104 & 04-37 (stating that “sources of potential [Access BPL] measurement inaccuracies include: the measurement distance and extrapolation factor”); id. at 7-5 (stating that “[Access] BPL field strength does not decrease with increasing distance consistent with the existing Part 15 distance extrapolation factor of . . . 40 dB per decade . . . below 30 MHz”).
Promulgated in 1989, the regulation states that for frequencies below 30 MHz the factor applies “[p]ending the development of an appropriate measurement procedure,” 47 C.F.R. § 15.31(f)(2), and the Commission acknowledged that “[t]he actual extrapolation factor can be determined empirically” for carrier current systems, NOI, 18 F.C.C.R. at 8508.
But that aside, the Commission offered no reasoned explanation for its dismissal of empirical data that was submitted at its invitation. Order, 19 F.C.C.R. at 21,310. The League submitted three studies published in 2005 by the Commission’s counterpart in the United Kingdom, as well as additional analysis of its own, suggesting that an extrapolation factor of 20 dB per decade may be more appropriate for Access BPL.6 Upon reconsideration, the Commission summarily dismissed this data, stating: “No new information has been submitted that would provide a convincing argument for modifying [the extrapolation factor or emission limit/distance standards] at this time.” Reconsideration Order, 21 F.C.C.R. at 9318. Given the acknowledged critical nature of the extrapolation factor, see Reconsideration Order, 21 F.C.C.R. at 9317 & n.55, so conclusory a statement cannot substitute for a reasoned explanation, AT&T Corp. v. FCC, 236 F.3d 729, 737
(D.C. Cir. 2001), for it provides neither assurance that the Commission considered the relevant factors nor a discernable path to which the court may defer, see State Farm, 463 U.S. at 42-43. Our colleague’s philosophical concern cannot fill the void, see Concurring & Dis. Op. at 7-8.
6 See OFFICE OF COMMUNICATIONS (OFCOM), AMPERION PLT MEASUREMENTS IN CRIEFF (May 11, 2005); OFCOM, ASCOM PLT MEASUREMENTS IN WINCHESTER (May 11, 2005); OFCOM, DS2 PLT MEASUREMENTS IN CRIEFF (May 11, 2005), all filed in ET Docket Nos. 03-104 & 04-37.
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