Didn’t
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
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