[EIDXA] ARRL Tells FCC to "Reconsider, Rescind and Restudy"

[Jim Spencer]

http://www.arrl.org/news/stories/2005/02/08/100/?nc=1

ARRL Tells FCC to "Reconsider, Rescind and Restudy" BPL Order
NEWINGTON, CT, Feb 7, 2005--The ARRL has petitioned the FCC to take 
its broadband over power line (BPL) Report and Order (R&O) back to 
the drawing board. In a Petition for Reconsideration filed today, the 
League called on the Commission to "reconsider, rescind and restudy" 
its October 14, 2004, adoption of new Part 15 rules spelling out how 
BPL providers may deploy the technology on HF and low-VHF 
frequencies. Asserting that the R&O fails to adequately take into 
account the technology's potential to interfere with Amateur Radio 
and other licensed services, the League called the FCC's action to 
permit BPL "a gross policy mistake." The R&O, the ARRL 
said, "represents a classic case of prejudgment" by an FCC that knew 
better but ignored evidence already at its disposal. 

"It is readily apparent that the Commission long ago made up its mind 
that it was going to permit BPL without substantial regulation, no 
matter what the effect of this flawed application of old technology 
is on licensed radio services," the League's petition declares. The 
ARRL accuses FCC Commissioner Michael Powell and his four colleagues 
of deliberately authorizing "a spectrum pollution source that has, 
time and again, been demonstrated to be incompatible with existing 
licensed uses of the limited and unique high frequency spectrum." The 
ARRL said BPL's interference potential makes BPL "a bad method" of 
providing broadband services to homes and businesses. 

While expressing appreciation for Commissioner Michael Copps' 
concerns regarding BPL's potential to interfere with Amateur Radio 
and his call for quick complaint resolution, the League said his 
admonition "has not been heeded by either the Enforcement Bureau or 
the Office of Engineering and Technology." The latter 
has "inexplicably taken control of BPL interference investigations 
and has adjudicated not a single one to date," the ARRL added. 

Pilot BPL projects have demonstrated that interference to licensed 
services is "extremely difficult or impossible to eliminate," even 
with close cooperation by the BPL provider. "Not a single 
interference complaint has been resolved except by termination of the 
BPL test," the League's petition maintains, and the Commission 
has "swept all interference complaints under the rug." 

In its eagerness to satisfy a policy goal, the Commission covered 
up "the bad news" about BPL that it already had in its hands, even 
before it released its Notice of Proposed Rule Making in the 
proceeding, the ARRL charged. "The Commission wanted nothing to 
contradict its enthusiasm about BPL," the League said, and its Office 
of Engineering and Technology (OET) saw to it that evidence of 
the "fundamental incompatibility" between BPL and incumbent HF radio 
services "was suppressed, ignored or discredited" by ad hominem 
arguments aimed at the messengers of the bad news, principally the 
ARRL. 

In the filing, which included several technical exhibits to bolster 
its major points, the ARRL further argued that Powell--a self-
described "cheerleader" for the technology--should have recused 
himself from voting on the R&O. The chairman, the ARRL says, violated 
the FCC's own ex parte rules by attending a BPL provider's 
demonstration October 12, after the FCC had released its agenda for 
the October 14 meeting. Powell "tainted this proceeding" by taking 
part in the demonstration, and that alone is sufficient to have the 
Commission vacate and reconsider its action. 

The League also said the FCC's "late and incomplete" responses to 
ARRL's Freedom of Information Act (FOIA) requests fail to show any 
support for FCC's conclusions regarding interference to licensed 
services from BPL. The ARRL filed FOIA requests in 2003 and again 
last year calling on the Commission to produce tests and other 
documentation that the agency said it had used in developing its new 
BPL rules. The highly redacted information release contained nothing 
that supports the FCC's conclusions about BPL's interference 
potential and suppressed negative recommendations from its own 
technical investigators, the petition says. "The released information 
establishes that the Commission failed to conduct impartial, reasoned 
rulemaking." 

The ARRL also said the R&O falls short in substantively evaluating 
BPL's interference potential. Beyond that, the Commission used an 
unlawful "balancing test" that weighed BPL's purported benefits 
against its interference to licensed services. "Worse, it has done so 
in a way as to create a hierarchy of licensed radio services and 
characterized them by how much interference each service deserves," 
the League's petition asserted. The ARRL called the approach 
untenable under the Communications Act, and its marginalization of 
the Amateur Service "discriminatory and unreasonable." The 
Communications Act, the League's petition points out, requires an 
objective determination from the outset that the likelihood of 
harmful interference from a proposed unlicensed service is virtually 
nil. 

"There is no statutory underpinning for the application of 
a 'balancing test' between interference from unlicensed facilities to 
licensed radio services based on the FCC's preconceived conclusions 
about the social or economic benefits of the unlicensed service," the 
ARRL concluded. The FCC's statements and action in the proceeding 
suggest the agency doesn't believe Amateur Radio is very important 
and does not deserve protection from interference to the same extent 
other licensed services do, according to the ARRL. 

The interference mitigation rules the R&O incorporates are both 
ineffective and inequitably applied, the ARRL's petition further 
argues. Noting the new rules do not require BPL systems to shut down 
in the event of interference except as "a last resort," the League 
said the practical effect is "that systems will never have to shut 
down, even though the BPL operator may have proven ineffective at 
remedying serious, ongoing harmful interference to the Amateur 
Service." The petition says the R&O marks the first time in history 
that the Commission has authorized an unlicensed service with 
significant and demonstrable potential to interfere with licensed 
radio services while not requiring its immediate shutdown if it does 
interfere. The League says the new rules accord priority to 
unlicensed BPL, "regardless of the preclusive effect" or the duration 
of interference. 

The Commission's "business as usual" attitude flies in the face of 
its own admission of BPL's higher potential to interfere when 
compared to other Part 15 systems, the ARRL says. In its unanimous 
BPL decision, the Commission, the League says, has abandoned its 
fundamental obligation to avoid interference in telecommunication 
systems, instead requiring complainants to initiate contact with BPL 
providers and "beg for resolution." Precluding interference by so-
called "notching" techniques is not the answer either, the petition 
asserts. Notching has proven difficult to implement effectively 
and "has not been successful generally in remedying BPL interference 
at test sites," the ARRL contended. 

Even more absurd, the League says, is that the R&O doesn't require 
BPL systems deployed before a date 18 months after its publication to 
comply with the new rules unless the system causes harmful 
interference and the operator fails to take necessary steps to 
eliminate occurrences of harmful interference. 

"As the result of this holding, it is apparent that the BPL 
facilities installed before July 7, 2006, never have to come into 
compliance with the new rules," the ARRL maintained. BPL systems not 
yet in operation "cannot be allowed to skirt the rules limiting 
interference potential" that long, according to the petition. 

The League's petition also faults the Commission's adopted 
measurement standards. 

http://www.arrl.org/announce/regulatory/et04-37/recon_petition/