ARRL files appeal against FCC order

ARRL, the national association representing amateur-radio licensees, has decided to file a court appeal of the FCC’s latest order regarding permissible emissions levels from broadband-over-powerline, or BPL, providers.

In a mid-October meeting, ARRL’s executive committee voted to pursue legal action in the U.S. Court of Appeals for the District of Columbia Circuit, said ARRL CEO David Sumner. The ham-radio organization has filed a petition for review, notifying the court of its intentions, and the court will establish the timetable for briefs to be filed, he said.

Although the ARRL executive committee is committed to pursuing the legal action, it has not determined the full scope of the lawsuit. However, at issue are at least two items in the FCC’s August 2006 order regarding BPL interference emissions’ effect on amateur-radio operations, Sumner said.

One new rule “basically gives BPL systems a free pass” to interfere with mobile amateur-radio stations, Sumner said. Under the rule, BPL operators are required only to reduce emission levels to 20 dB below the maximum allowable limit below 30 MHz — or 10 dB below the maximum limit above 30 MHz — even though the resulting environment typically is about 25 dB above the median noise level without the BPL emissions.

“‘[They’re sorry,] if there’s still harmful interference to mobile stations, that’s just too bad,’” Sumner said. “We think that’s simply intolerable. The commission can’t define away its obligation to protect licensed services from harmful interference.

“The commission is basically saying, ‘You can degrade HF mobile communication by 25 dB, and we’re not going to bother you.’ We’re not going to stand for that, and we’re going to the court of appeals.”

The other aspect of the FCC order that ARRL will appeal is a “40 dB per decade” assumption used to calculate field strength emitted from BPL lines. Although the extrapolation factor might be accurate for a point-source radiator, it is not accurate when the emissions come from a powerline — an explanation detailed in filings by the ARRL and others, Sumner said.

“There’s no perfect way to predict what the decay rate will be from the line, but it’s definitely not 40 dB per decade,” he said. “It’s significantly less than that. … The right number is a whole lot closer to 20 [dB] than to 40 [dB]. It’s clearly not 40 — you can demonstrate geometrically that it’s not 40.”

Although the ARRL asked the FCC to change several items in its BPL ruling, it likely will not ask the court to revisit each of these. When an FCC order cites a reasoned explanation for its finding, such action would be “fruitless,” because courts are required to defer to the expert agency, Sumner said. However, ARRL will contend that expertise was not demonstrated when the FCC seemingly ignoring multiple filings favoring ARRL’s position on the “40 dB per decade” assumption, he said.

“The commission dealt with all of those showings with the flat statement, ‘We’re not persuaded that there is any basis for changing our original decision,’” Sumner said. “That was it — that was the sum total of their argument. That’s just crying out for the court to tell them to go back and do it right.”

Sumner said ARRL is seeking support for the lawsuit from other radio services that might be affected by BPL emissions. The lawsuit is ARRL’s first legal action against the FCC since 1990, when the organization challenged the FCC’s 220 MHz reallocations.

“It’s not something we do every day,” he said. “We wouldn’t do it if we didn’t feel that the consequences of leaving the rules as they are is serious not only for amateur radio but for all licensees. And we wouldn’t do it if we didn’t think we could win.”

BY THE NUMBERS

KEY POINTS IN ARRL LEGAL ACTION

20 dB
Amount BPL emissions must be below the maximum allowable limit below 30 MHz. ARRL contends FCC rule will hamper mobile ham operations.

40 dB
per decade: Assumption used to calculate field strength. While accurate for a point-source radiator, ARRL asserts that it’s not appropriate for powerline emissions.

16
Number of years since ARRL filed its last legal action against the FCC.