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 . . . .