Didn't PO me. Looks like a darn good brief stating their position. Of course, that's what we disagree with! Joel _____ From: w3kd@aol.com [mailto:w3kd@aol.com] Sent: Tuesday, July 03, 2007 9:17 AM To: arrl-odv Subject: [arrl-odv:15751] ARRL v. FCC, Brief of Respondent OK, folks, this requires a bit of warning. Your natural and expected response when you read the attached FCC brief in the BPL case is going to be a great deal of anger. You will be offended when you read the brief, because it mischaracterizes ARRL's position in numerous respects. Please fight that normal response when you read this. Let me suggest to you that which Mr. Roderick, Mr. Ahrens, Mr. Stafford, Mr. Bellows and Mr. Raisbeck are already well-aware because of their professional training; the mischaracterizations are a sign of weakness in the FCC's argument. So, the FCC's misstatements are a good thing, because (1) they indicate that they have had a hard time with our brief, and (2) we get to rebut the statements, and we can do so. I will have some analysis of this brief to offer later on, but there is no substitute for reading this yourself. It is public information, and doubtless will get some press shortly. The basic premise of the FCC is that ARRL expects no interference, and pristine band conditions, and that is an expectation that FCC has no obligation to meet. They claim that we expect absolute protection against ALL interference, and therefore expect too much. They are sticking with their technical determination that there is no significant interference potential from BPL, a determination which they believe is entitled to the Court's deference, and they urge that their balancing test between promoting broadband (a Congressional obligation) and protecting licensed services against interference was reasonable and within the scope of their jurisdiction. There is one troublesome aspect of this brief, which I will have to discuss with WilmerHale's lawyers. Most of you will recall that the FCC, in a proceeding involving 24 GHz, used the same unlawful balancing test in allowing very high powered, highly directional antennas for Part 15 transmitters which permitted path distances of many miles. We initially filed a notice of intent to appeal that decision, but later, after we re-evaluated the record and concluded that there was no good record of the interference potential, decided to abandon that court appeal, saving the argument about the limits of FCC's jurisdiction to permit interference-causing Part 15 devices for another day. FCC, having gotten away with that in that 24 GHz proceeding, now is throwing that back in our faces, saying that they already addressed the ARRL's statutory argument earlier, and we are now just dragging up old, already addressed claims. I think that there are a lot of holes in this brief, but I haven't yet conferred with the WilmerHale lawyers for their views. I will forward them to you when I get a chance to discuss this with Jon Frankel, our lead counsel there. More shortly. 73, Chris W3KD _____ AOL now offers free email to everyone. Find out more about what's free from AOL at <http://www.aol.com?ncid=AOLAOF00020000000437> AOL.com.