LYT-SPECTRUM-October 10/2/08 2:04 PM Page 4

S P E C T R U M P O L I C Y A N D R E G U L AT O RY I S S U E S

ANATOMY OF A SPECTRUM POLICY COURT DECISION

MICHAEL J. MARCUS

T his month’s column

reviews a recent U.S.
Court of Appeals decision
that considered a spectrum
Such appeals are not intended to second guess the

check to see that procedures were followed and all

technical judgments of the FCC, but rather as a double that FCC followed precedents
policy matter that the Federal sides treated objectively. In practice, there may be a
Communications Commission fine line between second guessing and looking at
(FCC) had decided. This mat-
ter should be of interest to procedural issues, although in this case the author
readers because it shows how believes the court kept to its proper role.
a transparent regulatory sys-
tem works with a system of
checks and balances. Also, many members of this multi-
national society either work in the United States or
develop products for sale in the U.S. market, and thus
their work is affected by such decisions.
On April 25, 2008, the U.S. Court of Appeals for the
District of Columbia Circuit decided the case of ARRL v.
FCC, an appeal of an FCC October 2004 decision that per-
mitted the use of carrier current “broadband power line”
(BPL) signals on medium voltage electrical utility distribu-
tion systems [1]. ARRL, the national amateur radio society
of the United States, was concerned that the new rules
would create harmful interference in the licensed amateur
radio high frequency (HF) bands and appealed the FCC
decision to the court [2]. Under the Administrative Proce-
dure Act (APA), such appeals are permitted in the United
States for all agency decisions to determine if they are
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law [3].” Such appeals are not
intended to second guess the technical judgments of FCC,
but rather as a double check to see that procedures were
followed and all sides treated objectively. In practice, there
may be a fine line between second guessing and looking at
procedural issues, although in this case the author believes
the court kept to its proper role. (Readers from civil law
countries such as in Europe and Asia should note that in
the U.S./U.K. common law legal tradition, such a court
decision must consider both the letter of the law and court
precedents, and such precedents establish most of the
details of what is expected.)
The decision starts with a good plain language review of
the controversy before FCC on the BPL issue and states
what the basic interference controversy was. The court
then states its understanding of its role, saying:
“Our review of the Commission’s exercise of its regula-
tory authority is deferential, considering whether the Com-
mission’s action was arbitrary or capricious, an abuse of
discretion, or otherwise not in accordance with law. An
agency need only articulate a ‘rational connection between
the facts found and the choice made,’ and the court ‘will
not intervene unless the Commission failed to consider rel-
evant factors or made a manifest error in judgment.’ (Cita-
tions omitted)
The decision then reviews
several points where it agreed
and procedures properly. How-
ever, it then comes to ARRL’s
allegation that FCC had “failed
to comply with the APA by not
disclosing in full certain studies
by its staff upon which the
Commission relied in promul-
gating the rule.” In considering
this, the court cited a 2006 decision stating that “[a]mong
the information that must be revealed for public evalua-
tion are the ‘technical studies and data’ upon which the
agency relies [in its rulemaking]” and a 1986 decision that
stated “[i]n order to allow for useful criticism, it is espe-
cially important for the agency to identify and make avail-
able technical studies and data that it has employed in
reaching the decisions to propose particular rules.” FCC
had made five studies of empirical field tests, but had
redacted parts of them, stating that those parts were not
used in the final decision. Citing a long string of prece-
dents, the court decided “there is no APA precedent
allowing an agency to cherry-pick a study on which it has
chosen to rely in part.” Furthermore, the court found that
FCC could “point to no authority allowing it to rely on the
studies in a rulemaking but hide from the public parts of
the studies that may contain contrary evidence, inconve-
nient qualifications, or relevant explanations of the
methodology employed.” The court then remanded the
FCC decision back to the agency for review of this issue —
creating uncertainty over the new BPL rule.
A second issue on which the court agreed with ARRL
was that of what extrapolation factor to use when mea-
suring field to verify compliance. While emission limits
are usually stated as maximum field strength at a given
distance, in practice measurements must be taken at
another distance and extrapolated back to the standard
distance. Traditionally, 40 dB/decade is used for EMC
measurements below 30 MHz for emitters that have gen-
erally been point sources — small compared to the
wavelengths involved [4]. The extrapolation factor used,
in effect, has a major impact on what emission strength
is permitted.
The court found that:
“(A)lthough indicating that it was confronted with a
‘lack of conclusive experimental data pending large scale
Access BPL deployments,’ the Commission provided no
explanation of how this circumstance justified retaining for
Access BPL an extrapolation factor that was designed to
accommodate technologies different in scale, signal power,
and frequencies used.”
(Continued on page 6)

4 IEEE Wireless Communications • October 2008