Uphill Battle Seen for ARRL Legal Challenge of FCC BPL Rules

With the U.S. Appeals Court, D.C., usually deferring to the FCC on technical matters, the American Radio Relay League faces an uphill battle getting the court to void Commission BPL rules, said industry lawyers and analysts we spoke with. The ARRL petitioned Oct. 10 seeking review of the FCC rules, but the document didn’t specify objections to them. In a news release, the ARRL indicated it’s targeting the FCC’s 40 dB per decade extrapolation factor and a “new rule” in an Aug. memo and order limiting the extent to which BPL operators must protect mobile ham radio stations from interference.

The D.C. Circuit has shown the FCC great deference on technical matters, said Brett Kilbourne, assoc. counsel of the United Power Line Council (UPLC). “The court of appeals very rarely overrules the FCC on a truly technical question,” a lawyer close to the proceeding said: “This is a truly technical question.” The FCC has better engineers than the court, so it’s unlikely it will say the FCC is wrong, he said.

On protecting mobile amateur radio, the rules say a BPL operator needn’t do more than attenuate a signal by a certain number of dBs even if interference occurs, the lawyer said. The FCC feared amateurs might go hunting for interference to report to make things difficult for BPL operators, he said. The crux of the amateurs’ argument is that the rule didn’t appear in the notice of proposed rulemaking, denying chances for public comment, he said.

But case law says the FCC can adopt a rule that’s a “logical outgrowth” of proposals in the NPRM, the lawyer said. In this case, “I think it fairly is,” he said. A rule need only be a logical outgrowth of a proposal by the FCC -- or others, UPLC’s Kilbourne said, terming the ARRL complaint of getting no notice of the new rule incorrect. Early in the BPL rulemaking, he said, Progress Energy raised the issue and asked the FCC to step in and define harmful interference to mobile ham operators, he added.

The FCC has tried to balance ham radio and BPL operator interests, but the ARRL “appears bent on an all or nothing solution, not trying to cohabit,” analyst Scott Cleland said.

The court lacks the FCC’s technology and policy-making expertise, so it gives the agency much deference, he said: “This is an uphill battle for the radio league.” Saying he doesn’t think the appeal will succeed, Current Communications Gen. Counsel Jay Birnbaum said FCC’s expertise “will carry the day.”

The legal challenge will have virtually no effect on BPL deployments, said industry executives. “I don’t think this injects any significant level of uncertainty,” said Birnbaum. Kilbourne said the legal challenge shouldn’t keep utilities from deploying BPL, since the FCC rules probably won’t be stayed. But Coleman Bazelon of Analysis Group said anything that “delays regulatory certainty” will have a negative impact on deployment. The suit increases the “incredible challenge” already facing the BPL industry, said Bruce Leichtman of the Leichtman Research Group. The longer rollouts take, the harder industry has to work, since each quarter 2 million more people get broadband from cable, DSL and other sources, he said. And industry has yet to show the economic feasibility of delivering broadband in rural and unserved areas, thought to be BPL’s strong point, he added. - - Dinesh Kumar