524 F.3d 227 (D.C. Cir. 2008), 06-1343, American Radio Relay League, Inc. v. F.C.C.

Docket Nº:06-1343.
Citation:524 F.3d 227
Party Name:AMERICAN RADIO RELAY LEAGUE, INCORPORATED, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Ambient Corporation, et al., Intervenors.
Case Date:April 25, 2008
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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524 F.3d 227 (D.C. Cir. 2008)

AMERICAN RADIO RELAY LEAGUE, INCORPORATED, Petitioner

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

Ambient Corporation, et al., Intervenors.

No. 06-1343.

United States Court of Appeals, District of Columbia Circuit.

April 25, 2008

Argued Oct. 23, 2007.

On Petition for Review of Orders of the Federal Communications Commission

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Jonathan J. Frankel argued the cause for petitioner. With him on the briefs were Christopher D. Imlay, William T. Lake, Dileep S. Srihari, and Daniel A. Zibel.

C. Grey Pash, Jr., Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Thomas O. Barnett, Assistant Attorney General, Robert B. Nicholson and Robert J. Wiggers, Attorneys, Samuel L. Feder, General Counsel, Federal Communications Commission, Joseph R. Palmore, Deputy General Counsel, Richard K. Welch, Associate General Counsel, and John E. Ingle, Deputy Associate General Counsel.

George Y. Wheeler, John B. Richards, Thomas B. Magee, James N. Horwood, Tillman L. Lay, Jill Mace Lyon, Brett Kilbourne, Mitchell Lazarus, and Harry F. Cole were on the brief for intervenors.

Before: Rogers, Tatel and Kavanaugh, Circuit Judges.

OPINION

ROGERS, Circuit Judge

The American Radio Relay League, Inc., petitions on behalf of licensed amateur radio operators for review of two orders of the Federal Communications Commission promulgating a rule to regulate the use of the radio spectrum by Access Broadband over Power Line ("Access BPL") operators. The Commission concluded that existing safeguards combined with new protective measures required by the rule will prevent harmful interference to licensees

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from Access BPL radio emissions. The League challenges this conclusion, contending that the Commission has abandoned decades of precedent requiring shut-down and other protections for licensees and that the rule is substantively and procedurally flawed. We grant the petition in part and remand the rule to the Commission. The Commission failed to satisfy the notice and comment requirements of the Administrative Procedure Act ("APA") by redacting studies on which it relied in promulgating the rule and failed to provide a reasoned explanation for its choice of the extrapolation factor for measuring Access BPL emissions.

I.

Under section 301 of the Communications Act, the owners and operators of "any apparatus for the transmission of energy or communications or signals by radio" are required to obtain a license as a condition of operation and they may not use or operate any such apparatus, for instance, "when interference is caused by such use or operation with the transmission of such energy, communications, or signals." 47 U.S.C. § 301. Section 302 of the Act authorizes the Commission, "consistent with the public interest, convenience, and necessity," to promulgate regulations for manufacture and use governing "the interference potential of devices which in their operation are capable of emitting radio frequency energy . . . in sufficient degree to cause harmful interference to radio communications." Id. § 302a(a). The Commission's rules, specifically Part 15, define "harmful interference" as "[a]ny emission, radiation or induction that endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radio communications service." 47 C.F.R. § 15.3(m). The rules governing unlicensed devices also include two provisions to protect licensed radio operators from unlicensed devices: an ex ante precondition of operation that a device not cause "harmful interference," id. § 15.5(b), and an ex post requirement that a device "cease" operation if "harmful interference" occurs, id. § 15.5(c).

The Commission, upon concluding that "the introduction of new high-speed [Access] BPL technologies warrants a systematic review of the Part 15 rules in order to facilitate the deployment of this new technology, promote consistency in the rules and ensure the ongoing protection of the licensed radio services," issued a notice of inquiry. Notice of Inquiry, Carrier Current Systems, Including Broadband Over Power Line Systems ("NOI"), 18 F.C.C.R. 8498, 8503 (April 28, 2003). Therein it stated that in the process of Access BPL transmission, devices installed along electric power lines transmit radio frequency energy over the 1.7 - 80 MHz spectrum, creating potential to interfere with the ability of nearby radio operators to send and receive signals on the same frequencies. Id. at 8499-500, 8505-06. Licensed radio operators on this part of the spectrum include public safety and federal government agencies, aeronautical navigation, maritime, radio-astronomy, citizen band radio, and amateur radio operators. Id. at 8506. Subsequently, in announcing a proposed rule, the Commission stated that its policy was to "promote and foster the development of [the] new technology [Access BPL] with its concomitant benefits while at the same time ensuring that existing licensed operations are protected from harmful interference." Notice of Proposed Rule Making, Carrier Current Systems, Including Broadband Over Power Line Systems ("NPRM"), 19 F.C.C.R. 3335, 3355 (Feb. 23, 2004).

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In the final rule the Commission defined Access BPL and set technical and administrative requirements to protect licensed radio operators from harmful interference. See Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Carrier Current Systems ("Order"), 19 F.C.C.R. 21,265, 21,284-302 (Oct. 28, 2004). To protect licensed operators, the rule requires Access BPL manufacturers and operators to comply with certification requirements and emission limits, and establishes a nationwide database of Access BPL operations in order to facilitate identification of a source of interference and its resolution. Id. at 21,282, 21,300, 21,316. Access BPL operations also must have the capability, from a central location, to reduce or "notch" operating power, to avoid or adjust frequencies, and to shut down segments of their operations entirely when necessary to resolve licensees' complaints of "harmful interference." Id. at 21,291-96. To protect government, aeronautical, and public safety operations, Access BPL operators must avoid certain frequencies and certain geographic areas, notify and consult with public safety users before beginning operations, and resolve public safety users' complaints of harmful interference within 24 hours. Id. at 21,287-89, 21,301-02. The Commission retained the existing extrapolation factor of 40 decibels ("dB") per decade1 for frequencies below 30 MHz to measure Access BPL emissions and any resulting interference. Id. at 21,309-12.

The Commission acknowledged that "some cases of harmful interference may be possible from Access BPL emissions at levels up to the Part 15 limits" but it was satisfied that "the benefits of Access BPL service warrant acceptance of a small and manageable degree of interference risk." Id. at 21,276. The Commission concluded that the risk of such harmful interference was "low." Id. at 21,275; see id. at 21,283. Regarding mobile operations, such as amateur radios in automobiles, the Commission concluded that the requirement that Access BPL operators "notch" their emitted power to a level at least 20 dB below emission limits on a frequency band would be "generally . . . sufficient to resolve any harmful interference that might occur to mobile operations." Id. at 21,294. The Commission referenced its findings that "[only] low signal levels [are] allowed under the Part 15 emission limits" and that "a mobile transceiver can readily be re-positioned to provide some separation from the Access BPL operation." Id.

In reaching its "low"-likelihood conclusion, the Commission stated that "[t]he record and our investigations indicate that [Access] BPL network systems can generally be configured and managed to minimize and/or eliminate . . . harmful interference potential [to licensed radio services]." Id. at 21,266, 21,322. The Commission also relied on "information provided by our field tests," "our own field measurements of Access BPL installations," and "our own field testing." Id. at 21,275-76, 21,282, 21,296. Following issuance of the NOI, the League sought disclosure under the Freedom of Information Act ("FOIA") of the Commission's studies related to Access BPL systems. The Commission denied that request except as to one document that it placed in the record in the fall of 2003. When the League filed a second FOIA request citing the Order, the Commission released five studies in redacted

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form and made them part of the record in December 2004 after the rule was promulgated. The Commission stated that "[t]hese documents comprise internally-generated information upon which the Commission relied, in part, in reaching its determination." Submission by FCC Ofc. of Eng'g & Tech. to Sec'y (Dec. 22, 2004), filed in ET Docket Nos. 03-104 & 04-37.

The League sought reconsideration, and upon its denial, with a clarification, 2 the League petitioned for review.

II.

The League seeks vacatur of the rule on four grounds. The League contends that: First, without acknowledging it, the Commission abrogated seventy years of precedent by invoking section 302 of the Act to authorize the operation of unlicensed devices that could interfere with licensed devices, and by no longer requiring them to cease operation if they actually cause harmful interference. Second, because "[t]he lynchpin" of the rule "is a series of studies conducted by the [Commission's] engineers" that have never been made available in unredacted form, their non-disclosure violates the...

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