October 2003 - arrl-odv - reflector.arrl.org

[ARRL-ODV:9660] Re Confidential re ARRL v. FCC, United States District Court , DC Circuit
by John Bellows 28 Oct '03

28 Oct '03

I agree with Chris that the continued expansion of Part 15 devices by FCC has to stop. I just wonder if the secondary Amateur allocation at 24.05-24.25 GHz is the place to stand our ground. As I understand the situation: 1. FCC claims that it has jurisdiction to authorize Part 15 devices pursuant to Section 302(a) of the Communications Act, which allows FCC to regulate the interference potential of devices. 2. We dont question that jurisdiction, we argue that Section 302(a) is subject to Section 301 which provides (with a few Section 307 exceptions, e.g. CB, aviation and marine radio) no RF transmitters can operate without an FCC license. 3. In the order denying our reconsideration petition FCC states (finds) that the 24 GHz devices will NOT have any interference potential to licensed radio services. 4. Even though we believe the non-interference finding by FCC is without merit it is highly unlikely the Court of Appeals will substitute its judgment for the alleged expertise of the FCC. 5. Amateurs only have a secondary allocation and as such must tolerate any interference from the primary user, Industrial, Scientific and Medical (ISM) devices. 6. There is no indication that the ISM community is inclined to Petition for Review of this action. 7. Even if the Court holds our statutory argument is correct, it could find, based on FCC evaluation, there will likely be no interference because of the narrow antenna beamwidths and the frequency agility of Radio Amateurs. 8. If the Court sides with us and construes Section 301 in accordance with its plain meaning, FCC will likely go to Congress for some legislative relief. 9. If FCC does that, it will almost certainly get that relief because Congress likes the idea of unlicensed radio operation, and encourages the "spectrum commons" idea. We could find that, in the long run, Congress could expand FCC Part 15 authority and we may have a worse situation than at present. Here are my questions. If we dont have the firm support of the ISM industry, is this really the battlefield of choice? What is the probability we can actually win this case? It seems that unlike the problems created by mass marketed omni-directional Part 15 transmitters, the source of interference from one these radiators should be relatively easy to track down. Unless I am missing something it also appears that once located the non-interference provisions of Part 15 should apply to the transmitter and it will be up to the owner to correct the interference problem. How do we avoid the claim that Amateurs are only interested in hanging on to little used spectrum because it is theirs no matter how underutilized, even in the light of a compatible use? Mind you I dont believe that but the claim will be raised. Shouldnt we wait for a battlefield more to our liking? The playing field is tilted enough. Wouldnt it be to our advantage to wait for a better fact situation or at the very least one where we have a few allies? 73, Jay, KØQB

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[ARRL-ODV:9659] Re: Confidential re ARRL v. FCC, United States Court of ...
by Joel Harrison 28 Oct '03

28 Oct '03

If you were the Red Sox's, you would have fired the manager of your firm today. Joel -----Original Message----- From: W3KD(a)aol.com [mailto:W3KD@aol.com] Sent: Tuesday, October 28, 2003 12:45 PM To: arrl-odv Subject: [ARRL-ODV:9658] Re: Confidential re ARRL v. FCC, United States Court of ... In a message dated 10/28/2003 1:34:46 PM Eastern Standard Time, dick(a)pobox.com writes: Before I get to my comments on this petition, I believe there is an editorial typo in Chris Imlay's briefing text in [ARRL-ODV:9650]. The first sentence of the fourth paragraph states that "ARRL has exceeded its statutory authority...". I believe the term "ARRL" is really meant to be "FCC". Board 3, Imlay 0. I feel like the Boston Red Sox. Chris

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[ARRL-ODV:9658] Re: Confidential re ARRL v. FCC, United States Court of ...
by W3KD＠aol.com 28 Oct '03

28 Oct '03

In a message dated 10/28/2003 1:34:46 PM Eastern Standard Time, dick(a)pobox.com writes: > > Before I get to my comments on this petition, I believe there is an > editorial typo in Chris Imlay's briefing text in [ARRL-ODV:9650]. The > first sentence of the fourth paragraph states that "ARRL has exceeded > its statutory authority...". I believe the term "ARRL" is really meant > to be "FCC". > > Board 3, Imlay 0. I feel like the Boston Red Sox. Chris

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[ARRL-ODV:9656] Re: Confidential re ARRL v. FCC, United States Court of ...
by W3KD＠aol.com 28 Oct '03

28 Oct '03

In a message dated 10/28/2003 1:14:49 PM Eastern Standard Time, W5JBP(a)aol.com writes: > > > No, Chris, it is the other way around. > > Jim OK, Jim got it too. Mea Culpa. Chris

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[ARRL-ODV:9655] Re: Confidential re ARRL v. FCC, United States Court of ...
by W3KD＠aol.com 28 Oct '03

28 Oct '03

One other typo in my memo (a Freudian slip). I should have said that FCC, not ARRL, exceeded its statutory authority. I wish ARRL had some statutory authority to exceed... Thanks to Sandy for that catch. 73, Chris

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[ARRL-ODV:9654] Re: Confidential re ARRL v. FCC, United States Court of ...
by W3KD＠aol.com 28 Oct '03

28 Oct '03

In a message dated 10/28/2003 12:46:01 PM Eastern Standard Time, dsumner(a)arrl.org writes: > > Just one non-substantive correction: the petition for review was filed on > October 23, not the 22nd. > > Right, sorry. Bad calendar reference. It was Thursday the 23rd, one day before the deadline. Dave and I were discussing the matter on the 22nd, so we held it up a day. Chris

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[ARRL-ODV:9653] Re: Confidential re ARRL v. FCC, United States Court of Appeals, D.C. Circuit
by dick＠pobox.com 28 Oct '03

28 Oct '03

28 OCT, 2003 - 1215 CST Before I get to my comments on this petition, I believe there is an editorial typo in Chris Imlay's briefing text in [ARRL-ODV:9650]. The first sentence of the fourth paragraph states that "ARRL has exceeded its statutory authority...". I believe the term "ARRL" is really meant to be "FCC". I agree with Chris Imlay's rationale for petitioning the court. Yes, there is inherent risk in opening up this can of worms. But I believe the FCC has already forced this issue in at least one pending proceeding (SAVI RFID tag proposal) and it's in the process of forcing it even more in the current BPL NOI and yet to be announced proceedings and potential rule makings on the BPL proposal. If we file the petition and eventually win this argument in federal court, it's also quite possible the issue of FCC authority to modify Part 15 Device regulations could eventually end up as a congressional bill to grant the commission this authority. If this happens, it will take a huge educational campaign to convince congress that RF usage has to remain licensed and regulated if RF spectrum is to remain useful. However, if we fail to go on the offensive, I believe it will be even more difficult to prevail in our effort to keep a lid on Part 15 Device interference encroachment against licensed users of the various spectrum allocations. 73 - Dick, W9GIG

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[ARRL-ODV:9652] Re: Confidential re ARRL v. FCC, United States Court of Appea...
by W5JBP＠aol.com 28 Oct '03

28 Oct '03

In a message dated 10/28/2003 11:30:04 AM Central Standard Time, W3KD(a)aol.com writes: > In essence, our argument will be that ARRL has exceeded its statutory > authority in authorizing these high power transmitters without individual > licenses. No, Chris, it is the other way around. Jim

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[ARRL-ODV:9651] Re: Confidential re ARRL v. FCC, United States Court of Appeals, D.C. Circuit
by Sumner, Dave, K1ZZ 28 Oct '03

28 Oct '03

Just one non-substantive correction: the petition for review was filed on October 23, not the 22nd. Dave

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[ARRL-ODV:9650] Confidential re ARRL v. FCC, United States Court of Appeals, D.C. Circuit
by W3KD＠aol.com 28 Oct '03

28 Oct '03

Greetings. On October 22, 2003, ARRL filed a Petition for Review with the United States Court of Appeals for the District of Columbia Circuit, asking the Court to reverse the FCC's decision in ET Docket No. 98-156 which permitted the marketing and deployment of microwave transmitters at 24.05-24.25 GHz at field strengths up to 2500 mV/m, using directional antennas with narrow beamwidths. This filing was ordered by the Executive Committee. A copy of the as-filed Petition for Review is attached. It says very little, and is merely a notice of intention to appeal an agency rulemaking decision. The argument is only a simple statement of position. The real argument will be made in briefs filed much later on. Some discussion of this filing was had at the last Board meeting, and this proceeding was discussed in the Minute 56 Study, presented to the Board at the last meeting. You will recall that in this proceeding, the FCC has permitted, in an Amateur band (24.00-24.05 GHz is Amateur primary, and 24.05-24.25 GHz is secondary. The latter segment is shared with Industrial, Scientific and Medical devices, and we have to tolerate any interference from ISM devices. However, Part 15 devices have never been authorized in that band, or in any other band, at such a high field strength) the operation of high power microwave transmitters. FCC did not allow those devices to be operated in the 24.00-24.05 GHz segment, as it was Amateur primary. In essence, our argument will be that ARRL has exceeded its statutory authority in authorizing these high power transmitters without individual licenses. Normally, point to point microwave facilities are operated on a licensed basis under Part 101 of the FCC rules. There are detailed frequency coordination and licensing requirements for all of them. FCC has just required these same extensive coordination and licensing procedures for other radio services (broadcast auxiliary and cable auxiliary), due to the benefits that those elaborate coordination and licensing procedures provide. In this case, however, FCC is content to have non-technical consumers operating high power microwave transmitters without either coordination or licensing. Section 301 of the Communications Act requires, in essence, that all transmitters of RF require licenses issued by the Commission, and that no transmitter can operate without one. There are a few exceptions to this set forth in Section 307 of the Communications Act, for CB, aviation and marine radio. There is no exception for Part 15 devices. However, FCC claims that it has jurisdiction to authorize Part 15 devices pursuant to Section 302(a) of the Communications Act, which allows FCC to regulate the interference potential of devices. While we do not question that jurisdiction, we argue that Section 302(a) is not an exception to Section 301. We understand that FCC has regulated Part 15 in the past premised on the theory that the devices operate at such low power or duty cycle that they have no interference potential to licensed services. Our analysis of Section 301 of the Communications Act tells us that the purpose of the licensing requirement, principally, is interference avoidance and resolution. Therefore, in order that the FCC comply with Section 301, it must find that an unlicensed device has no interference potential to licensed radio services. That holding cannot be reasonably made relative to devices with field strengths of up to 2500 mV/m, albeit using directional antennas, in a reasonably popular Amateur band. The Board discussed at the last meeting that there was almost inevitably a showdown looming between licensed services and Part 15. This is it, and we are using this proceeding to make our statutory argument. There is some concern about this, however, based largely on the FCC's order denying our reconsideration petition. FCC has taken some of the wind out of our sails by claiming, rather boldly, that the 24 GHz devices will NOT have any interference potential to licensed radio services, including the Amateur Service. The Court of Appeals will not substitute its judgment for the alleged expertise of the FCC, and this finding by the FCC is somewhat dangerous to our appeal. Also, as Dave Sumner noted, this band is a secondary Amateur allocation, and we must already accept interference from ISM devices there. It is not like the HF bands, where we have primary allocations. The outcome of this case could be bad in several respects. First, the Court might hold that the FCC does have jurisdiction to authorize Part 15 devices at whatever power levels they want. I think that outcome is unlikely, but it is most certainly possible. The Court might hold that our statutory argument is correct, but that in this case, as FCC will argue, there will likely be no interference because of the narrow antenna beamwidths and the frequency agility of Radio Amateurs, etc. Or, the Court might side with us, and construe Section 301 in accordance with its plain meaning, which will force FCC to go to Congress for some legislative relief. If FCC does that, it will almost certainly get that relief. Congress likes the idea of unlicensed radio operation, and encourages the "spectrum commons" idea. We could find that, in the long run, we have a worse situation than we have now, in terms of what authority FCC has to authorize Part 15 operation. However, as we discussed in July, the Part 15 concept has to end somewhere, lest other bands be devastated by Part 15 as 2.4 GHz, for example, has been. One of our arguments against BPL is that FCC cannot authorize the service on an unlicensed basis. If the 24 GHz proceeding goes unchallenged, it will be more difficult to draw the line in other bands, where perhaps more of our members typically operate. Finally, the 24 GHz devices authorized by the FCC to operate without licenses are virtually impossible to distinguish from those licensed and coordinated under Part 101. So, in the end, and recognizing the dangers in pursuing any challenge to FCC's jurisdiction to authorize unlicensed devices, this proceeding has some benefits that make it, in my view, a good vehicle for this statutory argument. If the Board, or the Executive Committee, upon further review of this matter, disagrees, we can withdraw the Petition for Review, without losing face or much else. But that opportunity does not exist for long, since others might intervene, at which point there is no turning back. We will inevitably be fighting the Part 15 industry, and I anticipate a large number of intervenors on the side of the FCC. We are hoping for a few on our side as well, but they may not be forthcoming. Let me know what questions you have. 73, Chris W3KD

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