Court finds FCC Violated APA continued ...

Page 9 Access Broadband over Power Line Court Decision

On remand, the Commission shall either provide a reasoned justification for retaining an extrapolation factor of 40 dB per decade for Access BPL systems sufficient to indicate that it has grappled with the 2005 studies, or adopt another factor and provide a reasoned explanation for it. The court need not address the League’s contention that the Commission failed to consider a proposal of a sliding-scale extrapolation factor, assuming it was properly presented to the Commission through a reference in an exhibit accompanying the League’s petition for reconsideration.


Finally, the League contends the Commission gave inadequate consideration to a proposal that would restrict Access BPL systems to the frequency band between 30 MHz and 50 MHz, rather than allowing use throughout the 1.7 - 80 MHz spectrum range.

An agency is required “to consider responsible alternatives to its chosen policy and to give a reasoned explanation for its rejection of such alternatives.” City of Brookings Mun. Tel. Co., 822 F.2d at 1169 (quoting Farmers Union Cent. Exch., Inc. v. Fed. Energy Regulatory Comm’n, 734 F.2d 1486, 1511 (D.C. Cir. 1984)); see also State Farm, 463 U.S. at 42. Although this obligation extends only to “significant and viable” alternatives, Farmers Union, 734 F.2d at 1511 n.54, the League’s proposal was “neither frivolous nor out of bounds,” Chamber of Commerce v. SEC, 412 F.3d 133, 145 (D.C. Cir. 2005), particularly in light of the Commission’s adoption of certain band exclusions to protect other licensed operators, see Order, 19 F.C.C.R. at 21,287-89. Contrary to the League’s contention, however, the Commission did not treat it as such.

The Commission explained that the alternative proposal would have “restrict[ed] Access BPL system design and reduce[d] system capacity,” as well as “increas[ed] . . . its cost to the public . . . without corresponding benefit or need.” Reconsideration Order, 21 F.C.C.R. at 9321. Viewing the Access BPL remediation mechanisms in the rule as sufficient to protect amateur operations, id. at 9325-26; see also Order, 19 F.C.C.R. at 21,283-84, the Commission noted that the alternative proposal requested a system-wide “complete avoidance of all HF frequencies [below 30 MHz]” without regard to whether there were any amateurs near an Access BPL installation. See Reconsideration Order, 21 F.C.C.R. at 9321. The League maintains that the Commission’s response was empirically deficient, but the Commission, in fact, discussed the difference between amateur operations and other operations that received band protection. See id. at 9323 (citing Order, 19 F.C.C.R. at 21,289). Its analysis reflects the Commission’s considered technical judgment in light of its policy to foster Access BPL technology because it offers the potential for establishing “a significant new medium for extending broadband access to American homes and businesses,” could be made available nearly everywhere, including rural areas with power lines, and could introduce additional competition. Order, 19 F.C.C.R. at 21,266. Observing that “public safety systems merit additional protection because of the often critical and/or safetyof-life nature of the communications they provide,” the Commission noted that “in many instances amateur frequencies are used for routine communications and hobby activities.” Id. at 21,289. In offering an explanation for rejecting the alternative, the Commission was not required to do more. See City of Waukesha v. EPA, 320 F.3d 228, 258 (D.C. Cir. 2003).

Accordingly, we grant the petition in part and remand the rule to the Commission. See Engine Mfrs. Ass’n, 20 F.3d at 1184; Radio-Televison News Dirs. Ass’n v. FCC, 184 F.3d 872, 888 (D.C. Cir. 1999) (citing Allied-Signal, Inc. v. Nuclear Regulatory Comm’n, 988 F.2d 146, 151 (D.C. Cir. 1993)). On remand, the Commission shall afford a reasonable opportunity for public comment on the unredacted studies on which it relied in promulgating the rule, make the studies part of the rulemaking record, and provide a reasoned explanation of its choice of an extrapolation factor for Access BPL systems.

TATEL, Circuit Judge, concurring: I write separately to emphasize that in my view, the disclosure ordered by the court in Part IIB is particularly important because the Commission’s failure to turn over the unredacted studies undermines this court’s ability to perform the review function APA section 706 demands. That provision requires us to set aside arbitrary and capricious agency action after reviewing “the whole record,” 5 U.S.C. § 706, and the “whole record” in this case includes the complete content of the staff reports the Commission relied upon in promulgating the challenged rule.

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