CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

ARRL demanded full-time notching in response to the FCC’s initial Notice of Inquiry on BPL, again in response to the subsequent Notice of Proposed Rulemaking; and again in requesting reconsideration of the initial rules. Unsatisfied with the FCC’s response, ARRL took the FCC to the U.S. Court of Appeals for the D.C. Circuit. The court sided with the FCC on the major issues, but told the FCC to take a second look at some of the technical findings. (More details here.) The FCC duly requested public comment on those technical findings. Again ARRL requested full-time notching. The FCC again refused, while making other adjustments to the rules. ARRL sought reconsideration of the modified rules, again with a request for full-time notching, which FCC again denied.

We detect just a trace of exasperation in the FCC’s language: “ARRL makes [its] arguments based on the same reasoning and facts that we considered and disposed of previously in the BPL First Order, the BPL First MO&O, and the BPL Second Order. We are, again, unpersuaded by its arguments …”

While the proceeding wound its way through the FCC, detoured through the federal courthouse, and then spent more years at the FCC, BPL itself underwent a major change. Originally the technology was touted as the “third wire” into the home for broadband Internet delivery (the other two being cable and telephone facilities). The initial BPL roll-outs indeed signed up substantial numbers of Internet customers. But in the time since, the utilities that carry BPL have stopped offering retail Internet service. They now use the technology solely for internal utility communications, such as meter reading and load management.

The FCC’s new order is the regulatory equivalent of driving a stake through the heart of ARRL – or at least, that part of the organization that has spent the last decade opposing BPL with something akin to religious fervor. ARRL’s only procedural option now is another trip to court. We don’t think that’s likely; but if ARRL does file a court appeal, we will let you know, and you will be reading about BPL in CommLawBlog for many more years to come.

(Blogmeister Alert to Readers: FH&H represents a client in this proceeding.)

Some BPL systems, as a by-product, generate radio signals on frequencies that overlap with the amateur radio bands. Everyone agrees that interference into amateur radio receivers is at least a theoretical possibility. But there is less agreement on how much interference BPL systems actually cause. The amateurs claim that a BPL system amounts to a city-sized antenna that blankets the amateur bands with interference.  BPL providers counter that any interference comes from isolated equipment mounted on widely spaced power poles, and can be identified and adjusted if necessary.

The FCC rules on BPL include unprecedented protections for amateur radio, including a requirement that BPL operators turn down power on equipment that causes interference, and if necessary, turn it off completely.  But the amateurs want more: they want BPL to reduce power in all amateur bands, all the time, by a factor of at least 300.

ARRL opposed the FCC’s initial Notice of Inquiry on BPL; it opposed the subsequent Notice of Proposed Rulemaking; and it requested reconsideration of the initial rules. Unsatisfied with the FCC’s response, ARRL took the FCC to court, specifically, the U.S. Court of Appeals for the D.C. Circuit. The court sided with the FCC on the major issues, but told the FCC to take a second look at some of the technical findings. (More details on the case are here.) The FCC duly requested public comment on those technical findings, and agreed to some small adjustments to the rules.

“Well, that’s that,” said ARRL. “The court spoke; the FCC acted; and there’s nothing more to be gained.”

No, not really. What ARRL actually did say took up 53 pages of yet another Petition for Reconsideration, demanding once again that the FCC keep BPL out of the amateur bands. ARRL filed that petition back in December but the FCC, which by now must be thoroughly sick of the whole business, did not get around to putting it on public notice until June. The notice has been published in the Federal Register. Comments on ARRL’s latest petition are due by July 17, 2012; reply comments by July 27.

When the FCC responds to ARRL’s current petition, most likely a year or two from now, will that finally bring an end to the matter? Don’t count on it. So far it’s only been nine years. By Washington standards, we’re just getting started,

(Blogmeister Alert to Readers: FH&H represents a client in this proceeding.)

Before it could obtain certification, though, the Recon Scout needed a waiver of the FCC’s technical rules. The video feed from the device uses part of the 420-450 MHz band – frequencies that are allocated for radar and certain other applications, but not for video. Amateur radio operators took an interest because they have a secondary allocation in that band. (“Secondary” here means the amateurs may not cause harmful interference to federal-government radars, and must accept any interference from those radars.) ReconRobotics, the company that makes the Recon Scout, offered to accommodate the amateurs by making use of the Recon Scout secondary, in turn, to amateur operations.

Amateur radio interests nonetheless opposed an FCC waiver that would allow the Recon Scout to share their band. They first claimed the device would cause interference to their operations. Later, they added a second objection: that amateurs would be blamed for any interference they caused to the Recon Scout during emergency police and fire activity.

The FCC carefully considered both of these concerns and dismissed them. In February, 2010, it granted the waiver ReconRobotics had requested, ruling that the public interest in protecting first responders outweighed any small risk of interference to the amateurs. The FCC carefully limited use of the device to actual emergencies and necessary training. And it made clear that Recon Scout users had to protect amateur operators from interference. As to interference the other way, into the Recon Scout, the FCC essentially ruled the amateurs could not be held responsible.

ReconRobotics duly obtained an FCC certification and began selling units to police and fire departments around the country. Those customers began applying to the FCC for the licenses they needed to operate the device.

Now the amateurs moved on two fronts. First, they petitioned the FCC to reconsider the waiver, based mostly on the same arguments they had raised against the original grant. The FCC again found the arguments wanting, and, in April, 2011, it affirmed the waiver.

While the waiver reconsideration was still pending, amateur interests also filed individual Petitions to Deny against each of the dozens of police and fire departments’ applications for FCC operating licenses. By now their arguments were familiar, having been largely word-processed from the repeated objections to the waiver.  As an additional challenge, the amateurs questioned the Recon Scout’s certification, claiming it departed from the terms of the waiver. But again, the FCC found for ReconRobotics and its customers. In a closely-reasoned order, it has now turned down the Petitions to Deny and allowed the grant of the licenses to go forward.

Simultaneously, the FCC has responded favorably to another request from ReconRobotics, allowing the continued sale of units under the waiver in the years to come.

The amateurs are not yet out of options. Because the two recent orders came from the Public Safety and Homeland Security Bureau and the Wireless Telecommunications Bureau, respectively, the amateurs have the right to appeal them to the full Commission, and if that decision goes against them, to bring an action in the U.S. Court of Appeals. In the meantime, though, police and fire departments around the country will have the benefit of the Recon Scout’s lifesaving technology. As one police official put it, during early testing of the device, “We don’t feel comfortable without this thing now.”

Some parties, led by the amateur radio community, were vehemently opposed. That is because some BPL systems use some of the same frequencies that amateur radio does, and some of the energy leaks off the power lines in the form of potentially interfering radio waves. Indeed, in recognition of that phenomenon, the new BPL rules featured unprecedented protections for amateur radio, including a requirement that BPL operators turn down the power on equipment that causes interference, and if necessary, turn it off completely. But that did not satisfy the amateurs. They claimed that a city-wide BPL system amounted to a city-sized antenna that would blanket the amateur bands with interference. BPL providers countered that interference, if any, came from isolated units of equipment, mounted on widely spaced power poles, that could be identified and adjusted if necessary.

The FCC received 15 petitions for reconsideration. Some, including those from BPL providers, sought relatively minor adjustments to the rules. But the amateurs asked the FCC to rescind the rules completely, pending further technical study.

The FCC put the petitions on a shelf and turned to other priorities. It took two years, until August 2006, to rule on reconsideration, and even then it made only minor adjustments to the rules. The decision bluntly refused the wholesale changes sought by the amateurs. To the contrary, one passage arguably allowed BPL to cause interference to amateur receivers mounted in cars, under certain conditions. 

The amateur radio association, ARRL, challenged the revised rules in court. It raised several arguments, among them a claim that the FCC could not lawfully permit an unlicensed service, such as BPL, to cause interference to a licensed service such as amateur radio.

The courts move at their own leisurely pace. It took almost another two years – until April 2008 – for a decision. ARRL lost on its main argument (i.e., that a potentially interfering signal from an unlicensed device violated the Communications Act). But ARRL prevailed on two subsidiary issues. The court ordered the FCC to publish, for public comment, certain passages in technical studies it had previously redacted; and it required the FCC to justify a certain mathematical formula used in BPL compliance testing.

Almost a year later, in July 2009, the FCC got around to requesting public comment on the matters sent back by the court. And now, in October 2011 – more than two years after that request – it has made further small adjustments to the technical rules, although it leaves unchanged the particular formula the court had questioned.

But during the eight and a half years of legal wrangling among the amateurs, the BPL providers, and the FCC, the rest of the world continued to evolve. Among other changes, BPL ceased to be the breakthrough Internet service that had made it so important as a policy matter. The technology is still used by utilities for their own internal purposes, such as meter reading and load management. But the promise of the Internet “third wire” has faded. The companies that used to offer BPL Internet service have mostly stopped. They are not saying why, but we have a suspicion. The initial versions of BPL provided speeds of up to about 2 megabits/second. That was entirely respectable in 2003, but a tad slow nowadays, when speeds of 5-20 megabits/second are the norm. As a result, the new BPL rules, while important to some utilities, will have almost no effect on the Internet-using public.

Nor are the recently issued rules necessarily the end of the road. The amateurs still do not have the levels of protection against BPL interference they have fought for all along, and we doubt they will give up now. Indeed, the president of ARRL, in an article titled, “FCC Tightens BPL Interference Rules – But Not By Enough,” predicts his organization will petition the FCC to reconsider the new rules.

And so the proceeding will lurch on for months and years to come, Zombie-like, increasingly irrelevant in the real world, yet unable to be stopped. And nobody in Washington seems the least bit surprised.

The American Radio Relay League (ARRL) is an association of amateur radio operators dating back to 1914, with a long record of looking out for amateurs' interests before the FCC.  It fought BPL throughout the proceeding with a certain amount of rhetoric, but also with reasoned analysis and empirical data.  ARRL mobilized its individual members, who participated by the thousands, though by and large with a lot less reason and data than their association.  (There were a dozen or so notable exceptions.)  For some amateurs the battle against BPL took on the fervor of a religious crusade.

And indeed, the amateurs won a substantial victory.  Although the FCC authorized BPL in the amateur bands, it required BPL operators to undertake unprecedented measures to cure any interference they cause.  But the amateurs wanted more.  They wanted BPL completely off their frequencies.  When the FCC refused to go along, ARRL went to court.

The Part 15 Problem

BPL devices, both on the power poles and in customers' homes, are treated as "unlicensed devices" under Part 15 of the FCC rules.  The same is true of all other digital products, such as laptops and iPods, and also a host of low-power transmitters such as Wi-Fi, Bluetooth, and cordless phones.  All such unlicensed devices are regulated as to stray radio emissions, among other properties.  Manufacturers and importers must establish compliance before marketing.  Once they pass the required tests, the devices can be purchased and used by anyone without an FCC license.

There has long been some tension between the amateurs and the Part 15 industry.  Most of the higher-powered Part 15 operations occur in bands shared with the amateurs.  In some of these bands, Part 15 power can exceed one Watt -- 10 million times higher than the limit elsewhere in the spectrum.  As Part 15 devices proliferate, the amateurs are exposed to increasing risks of interference.  The amateurs routinely oppose expansion of Part 15 in the shared bands.  Starting about fifteen years ago, those oppositions began including a stock footnote suggesting that Part 15 might be unlawful under Section 301 of the Communications Act.  That section can be read to say that any device emitting radio waves must be licensed by the FCC.  If that were the correct reading, then the statutory language would leave no room for unlicensed devices.

In 2001, the FCC approved one more in a string of Part 15 power increases in shared amateur bands.  ARRL sought reconsideration, and this time argued head-on that the FCC's action violated Section 301.  The FCC's reasoning went something like this:

1.    We think Section 301 requires licensing only for devices that actually cause interference.  Harmless devices like laptops and PDAs and musical greeting cards are exempt -- and would be impossible to license anyway.  (ARRL agreed.)

2.    And we, the FCC, get to decide which devices cause interference.  (ARRL agreed again.)

3.    We now decide those higher-power Part 15 devices you oppose are non-interfering.  That makes them lawful under Section 301.

ARRL promptly filed an appeal.  But it withdrew the appeal shortly afterward, giving no reason for the change of heart.  Observers at the time thought ARRL, to prevail, would need a case having better facts.

From ARRL's point of view, the ideal set-up for a challenge would have the FCC authorizing a Part 15 device that the FCC itself conceded could interfere with amateur radio.  But that seemed unlikely, to say the least.  The FCC had always been careful about limiting Part 15 emissions to make interference to other users a very remote possibility.  But it took only three years for the planets to align.  In the BPL rules, the FCC seemed to give ARRL everything it needed to contest Part 15.

Mobile vs. Fixed

There are two kinds of amateur stations.  Fixed stations are typically installed in a building such as a residence or club; mobile stations are usually in a car.  Fixed stations tend to have better antennas and receivers, and so can receive weaker signals.  That makes the fixed stations more sensitive to very weak levels of interference.

The FCC at first adopted the same BPL rules as to fixed and mobile amateur users.  If an amateur reports interference, the BPL operator must "notch" (turn down) the signal on that frequency by either 90% or 99%, depending on the band.  If that does not resolve the problem, the operator has to completely shut off the offending BPL unit.  In addition, the BPL industry must maintain a publicly accessible database showing the frequencies in use and details on the equipment at every location nationwide, with phone numbers and email addresses to report interference.  All of this added up to a major victory for the amateurs, far beyond anything else in Part 15.

In a reconsideration order, the FCC made a small but significant change.  The rules remained the same for fixed amateur users.  But on a complaint from a mobile amateur, the BPL operator must only effect the 90 or 99% notch; it need not turn off the unit.  The FCC acknowledged that intermittent interference might remain after notching, but it absolved the BPL operator of further obligations.  The mobile user could escape the interference by relocating, the FCC noted, and besides, the public benefits of BPL justified "a small increase in instances of disruptions" to mobile communications.

No party had asked for this particular ruling.  But a look through the 8,000 filed comments turns up a possible motivation.  A few of the more zealous amateurs had said they planned to drive around looking for interference, report it, and thus shut down BPL "one pole at a time."  Eliminating the shut-down requirement as to mobile users ended this threat to BPL.  But it stirred outrage in the amateur community.

ARRL thought it finally had its case.  The FCC had admitted possible interference from a Part 15 device.  ARRL went to the U.S. Court of Appeals for the D.C. Circuit.

Is Part 15 Lawful?

ARRL's central argument turned on the Section 301 licensing requirement.  If a device can cause interference, said ARRL, it must be licensed, according to prior FCC rulings, and therefore is ineligible for authorization under Part 15.  At the very least, ARRL insisted, the FCC should be required to explain its departure from precedent on this point.

The FCC answered by saying, yes, while BPL may cause minor and intermittent interference, that does not constitute harmful interference.  Because Part 15 must protect amateur radio only against harmful interference, BPL is therefore proper under Section 301.

(The FCC could have made a different argument.  Another rule, much older than BPL, requires any Part 15 device to shut down if it causes harmful interference to any licensed user.  If that rule applies to BPL and mobile amateurs -- and there is no reason to think otherwise -- then BPL complies with the long-standing, non-interference interpretation of Section 301.  But the FCC did not raise this point.)

The Part 15 community was concerned about the case.  Any Part 15 device is a potential source of interference -- even harmful interference -- under some conditions.  Wi-Fi, for example, sometimes interferes with amateur radio.  A court ruling that barred the FCC from authorizing arguably interference-causing devices under Part 15 could have thrown the legal status of the industry into doubt.

But the court accepted the views of the FCC that BPL would not cause harmful interference to mobile amateurs.  This means the missing shut-down requirement would never have to be invoked, so its absence from the rules does not run afoul of Section 301.

The FCC must realize that it had a close brush.  Going forward, it is likely to be more careful in framing its rules to ensure that licensed devices are well protected from Part 15 interference.  And yet, as the role of Part 15 in the economy continues to grow, Part 15 becomes increasingly hard to contain.

Other Issues

While affirming the FCC on the Section 301 issue, the court found fault with other two aspects of the BPL decision.

First:  Among the many technical studies that played a part in the proceeding were five carried out by the FCC itself.  The FCC placed these in the public docket, but blacked out some passages it said were "preliminary or partial results or staff opinions."  It claimed not to have relied on those passages in reaching its conclusions.  And ordinarily an agency need not share its internal deliberations with the public.  But the court, having reviewed the missing material, suspected it might contain evidence that could call the rules into question.  For that reason it ordered the FCC to publish the material and to receive public comment on it.

The other ARRL victory (at least for the time being) concerns an "extrapolation factor" that the FCC carried over from earlier Part 15 rules.  At frequencies below 30 MHz, the permissible emissions are specified at a distance of 30 meters, or almost 100 feet.  That requires an inconveniently large test set-up.  The FCC allows measurements at shorter distances, which are then corrected to 30 meters by a factor of 40 dB/decade.  Translating:  for every factor of ten change in distance, the actual measured values are divided by 10,000.  For example, measurements taken at 3 meters can be 10,000 times higher than the published limit at 30 meters, and still comply.

ARRL insisted throughout the proceeding that 40 dB/decade is too high:  that the factor should be 20 dB/decade, or division by 100 for each tenfold increase in distance.  Using ARRL's figure, a BPL device measured at 3 meters would be allowed only 1/100 of the emissions it could have under the FCC's approach.

Ordinarily the courts tend to side with the agency on a complex technical issue.  Here, however, the court found that the mathematical models used to justify the 40 dB/decade value relied on measurements from other, non-BPL technologies that might not accurately reflect BPL.  The court also wondered why the FCC had disregarded British studies, placed in the record by ARRL, showing that 20 dB/decade was closer to the mark.  The court did not invalidate the 40 dB/decade factor, but it ordered the FCC either to justify it in terms of the record, including the British studies, or else to pick a different number and justify that one.

The last issue went to the FCC.  Equipment made by one leading BPL vendor uses only the frequency band 30-50 MHz, where the amateurs have no operations.  If one vendor could do it, ARRL reasoned, so could all of them.  It asked the FCC to limit BPL to just those frequencies, and when the FCC refused, complained to the court that the FCC had brushed off a good idea.  But the court found enough reasoning in the FCC's order to support the rejection.

Back to Work

The next step in the process will be a request for comments from the FCC, certainly on the redacted studies, and probably on the 40 dB/decade issue as well.  Considering the great interest in the original BPL proceeding, the FCC is bracing itself for this new round, which promises to be at least as contentious.  The amateur community is unlikely to pass up another opportunity to express its displeasure with BPL.