American Radio Relay League v. FCC, Why A Good Case Will Bring Confusion And Bad Results

I should be overjoyed with the D.C. Circuit’s latest case: American Radio Relay League v. FCC. First, it affirms the right of the Commission to balance between unlicensed Part 15 users and licensed users, even where operation of Part 15 certified devices/services will cause occasional interference to traditional Sec. 301 licensees. Second, it requires the FCC to publish staff reports on which it relies in their entirety, rather than merely including in the record the parts with which it agrees. Third, it requires the FCC to address proposals by commenters with something more substantive than “well, we’ve always done it this way, so we see no need to change.”

All good news, yes? As a legal matter, absolutely. But as a practical matter, I expect it to slow down movement on the FCC’s white spaces proceeding. Why? Because it was a reversal and a reversal almost always causes the good folks in the Office of Engineering and Technology to go into paralysis for a few months while they try to figure out what the new legal standard is now. That the court actually affirmed the critical part on respecting the FCC’s balance between Part 15 and traditionally licensed services is likely to get lost in the noise — especially as we can expect NAB and other white spaces opponents to dwell on the reversal aspect and ignore what the court actually said. And, in the short term, OET now has to figure out how to issue a report on the WSD testing that conforms to the D.C. Circuit’s standard of disclosure. While I, lawyer and advocate that I am, consider this simply an exercise in “tell the truth and shame the devil,” we can expect that opponents will press their own reading of the case and that OET (and FCC’s Office of General Counsel) will now have the difficult and potentially time consuming task of deciding on the proper interpretation.

So a good case in fact, but more delays while the agency digests its implications.

More below . . . .

What the Court Said

ARRL v. FCC addressed the rules for broadband over powerline service (BPL). At one time, people had high hopes for BPL as a potential competitor for cable and DSL. So the FCC faced considerable pressure to get rules out for BPL quickly so the BPL good times could roll with regulatory certainty.

Unfortunately, a byproduct of BPL is radio frequency (RF) energy. When electrons move along wires, which is what BPL is, they generate RF as a byproduct if this activity. Under Sections 301 and 309(h) of the Communications Act, the FCC has to protect licensed providers from interference. Under Section 302 of the Act, the FCC must regulate equipment that causes RF radiation to abate its interference. So BPL needed to get certified by the FCC for the appropriate level of interference it generates. This caused lots of fights with users of unlicensed wireless and ham radio operators, who were most likely to experience interference when BPL systems operated.

After much rulemaking and deliberation, the FCC came up with a set of technical rules. The FCC found that the rules it adopted might cause interference in some instances with licensed mobile ham operators. But this interference did not rise to the level of “harmful interference” (licensees enjoy protection from) because it was unlikely to occur, and if it did occur mobile users would move and avoid the interference. The fact that mobile users frequently encounter unexplained interference and therefore are used to moving around to get a signal, and therefore any residual interference from BPL was indistinguishable from the general risk of interference from background sources, was part of the FCC’s determination that the possible additional interference from BPL operation was not “harmful.” In making this decision, the FCC also explicitly balanced the benefits of the new technology against the potential harm to licensed amateur radio service. While this balancing did not permit the FCC to allow harmful interference to licensed services, it did influence the overall decision on how cautious to be in setting safeguards to protect from harmful interference.

The FCC also relied on five staff studies in setting the precise limits for BPL RF emissions. The FCC included portions of the studies in the record, but did not include those portions of the studies that it did not rely on. The FCC also rejected certain proposals from ARRL, on the grounds that ARRL had failed to demonstrate it was necessary to change the traditional metrics for signal interference.

On appeal the DC Circuit upheld the FCC’s determination on harmful interference and on balancing the interests of Part 15 users and licensees. Notably, the D.C. Cir. agreed with the FCC Section 301 and past Commission precedent “does not require the elimination of all interference at all times and in all places” for a determination that a Part 15 use does not cause “harmful interference.” It therefore affirmed the FCC’s basic calculus under Section 301 and its public interest determination to balance the value of BPL with the need to protect licensees.

The Court agreed with AARL, however, that the FCC was required to publish the entirety of studies on which it relied, not merely the sections it relied upon. The court ruled that the Administrative Procedure Act (APA) and past D.C. Cir. precedent required full disclosure of any staff studies used “warts and all.” The Court also found that a simple statement that the ARRL had failed to show that the Commission should not adopt proposed changes to the interference rules did not satisfy the APA requirement of reasoned decision making. The FCC was required to explain why the ARRL arguments were insufficient, not merely assert that they were insufficient.

Real World Impact

Applying this to white spaces (and to FCC proceedings generally) is all pretty much in line with what I and others have argued before. The FCC has considerable latitude in determining what constitutes “harmful interference,” and that the fact that the possibility of occasional interference to a licensed service exists is not an automatic show stopper. The FCC has an obligation to determine whether it rises to the level of “harmful” interference, a determination that includes a careful balancing under Section 301’s public interest standard. In addition, the more transparent the FCC in how it reaches its determinations, and the more detail it provides on why it rejected proposals as well as why it accepted them, makes for stronger orders and better rules.

But while these general principles are all fine and dandy, the actual human beings at OET now need to apply them in reality. Understand, I like and respect the folks in OET. They are good people trying to do their job. But these decisions make it awfully hard for engineers to figure out what their job actually is. Because there never was and never will be a pure question of engineering that yields a yes or no answer on a question as complicated as white spaces. Questions of interference are always about probabilities and and tolerances and trade offs. The challenge for OET is how do they determine what is permissible, what is forbidden, and what is required. But that is a legal question not an engineering question.

And OET has been gathering data now for some time. Boatloads of data. Some of it is useful. Some of it is not. Now they need to bundle all that into a report. Under the new D.C. Circuit ruling, how inclusive of data do they have to be? How much explanation do they have to provide? Do they need to have conclusions at all? Should they?

Until the D.C. Circuit issued its opinion today, folks at the FCC thought they could guess the answers to some of these questions. Now, however, they will need to reevaluate what they believe in light of this new opinion. That means consulting internally, but it also means getting all manner of opinions from folks like me and NAB that are deeply invested in the outcome.

If you were an engineer, would you be all excited about that? Or would you want to spend awhile thinking about what the heck this new decision means for your actual work product? I also bet you would have some nasty words for us lawyer types as well.

So in the end, I think this decision is a fairly good one and will have positive repercussions for expanding Part 15 services. It will also prompt the FCC to do more to make its decision making process more transparent and provide greater opportunity for notice and comment on studies. But in the short term, I expect more delays on the white spaces front while the FCC tries to figure out how to make these legal principles a reality.

Stay tuned . . . .