CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED COMMUNICATION AND WORK PRODUCT. NOT FOR DISCLOSURE OUTSIDE THE BOARD FAMILY.

 

 I think Dick has stated some very valid concerns. I can answer your first question, Dick, going back only to about 1979, when I first had any connection with ARRL other than as a member. We have filed three appeals in the D.C. Circuit from FCC decisions since then. Two were prosecuted through a decision from the Court. One, the most recent, was dismissed by us early, due to a re-evaluation of the factual record, which the Executive Committee determined was inadequate to support what we believed was a good legal argument.

 

The first case in that time period, beginning in about 1978, was the 10-meter linear amplifier ban. The FCC had decided to attempt to reduce the availability of CB linear amplifiers by imposing minimum drive power requirements, type acceptance, and a prohibition on linear amplifiers capable of operation between 24 and 35 MHz. The court argument was that the FCC overreached, and that the decision was not based on reasoned rulemaking. The Court said that the FCC did go pretty far in harming the innocent Amateur Radio operators, and that if it had been the Court making the decision, it would have imposed a less harsh remedy that didn't harm amateurs, but, in the end, couldn't find that the FCC had not engaged in reasoned rulemaking, and affirmed the FCC's decision as being within its jurisdiction. Bob Booth argued that case. I came in toward the end and contributed to the reply brief, but not the main brief.

 

The next case was in 1990, when we challenged the FCC decision to reallocate 2 MHz of the 220-225 MHz band. At then-President Larry Price's insistence, we used a large firm, Cadwalader, Wickersham & Taft, to prepare the case and argue it. The challenge was that the FCC had an inadequate record to reallocated 2 mHz (out of 5 MHz of shared spectrum allocated to fixed, mobile and Amateur services generally) for narrowband land mobile use, and to allocate 3 MHz to the ARS exclusively. Some, in hindsight, suggest that we should have been rather pleased with that FCC outcome, but we took it as a direct shot at our VHF allocations. The Court was disinterested in the argument and affirmed the FCC.

 

A couple of years ago, we filed a Petition for Review when the FCC authorized high power, 24 GHz Part 15 devices, requiring very narrow bandwidths. We thought that this was far too aggressive on FCC's part because on anyone's analysis, these high power devices, which were capable of many mile paths, should have been licensed under Section 301 of the Communications Act. However, the record in the FCC rulemaking was not good, since there was no engineering analysis showing interference potential, and no complaints of interference, no tests, etc. and so, before taking on the entire Part 15 industry, we dismissed the appeal before any subsantial pleadings or briefs were filed.

 

That is it for the past 27 years or so. Dave may be able to go back further. We have not been successful in appealing FCC's rulemaking decisions. Neither is anyone else. The agency does get reversed periodically in rulemaking cases, but rarely. The agency receives a good deal of deference to its alleged "expertise". However, there are quirks in this case that make it difficult, we believe, for FCC to receive the deference normally accorded by the courts to administrative agencies.

 

As to your second point, you are appropriately concerned about the likelihood of success, and no one is going to be able to give you any confidence of success in this appeal. We cannot "expect" to win, necessarily. However, that is not because we are asking a judge (actually a panel of three judges) to evaluate what the proper distance extrapolation factor is for signal decay with distance. That is not what we would ask the Court to do. What we would ask the Court to do is to determine whether or not the FCC has disregarded evidence in the record against a 40 dB/decade extrapolation factor and whether they exhibited in their decisions any justification for retaining that standard in the face of overwhelming evidence in the record to the contrary. At most, on this and on the other arguments, we would be asking the Court to send the case back to FCC for further consideration. If the Court does so on, for example, the 40 dB/decade issue, we do not believe that the FCC can justify, in light of the evidence in the record, a reaffirmation of the standard. I agree that you deserve a more complete discussion of the arguments than you have been provided thus far. I will attempt to flesh them out for you in a memo coming up. For now, I am attaching a memo that we received some time ago from the WilmerHale law firm (a freebie) that very well states a principal argument here: that FCC changed the rights of a licensee versus Part 15 devices without a reasoned justification for doing so and without even admitting that they were doing so. PLEASE, FOLKS, KEEP THIS CONFIDENTIAL!!!!!

 

I personally think that we should appeal the decision here because, as Dave has noted separately in response to Bruce's concerns, the FCC has, to a very large extent, thrown down the gauntlet here. They have said, for the VERY FIRST TIME in this proceeding, that licensed radio services are not entitled to protection against interference from Part 15 devices. They have reduced the level of protection to which Amateur (and other) licensees are entitled, and they have not enunciated a reason for doing so, except to say that balancing the interference potential against the benefit to the public in terms of having competitive broadband delivery, the licensed services come out on the losing end of the scale. That is the kind of error that the Courts are willing to reverse, and to tell the agency to consider this again.

 

As to remedies, yes, of course, FCC could, if it gets the case back, review it and come up with some other justification for allowing BPL interference, and hammer us a third time. But this time, they would be under much closer scrutiny, and we would be in a much better position to attempt to negotiate some reasonable interference prevention rules. And by then, we will have helped the marketplace to stay away from BPL.

 

The desired outcome is not more uncertainty and delay. That is a mere byproduct of the goal, which is for the Court to tell the FCC that it did not demonstrate any degree of expertise in this case; that it therefore is not entitled to deference for its alleged expertise because it did not demonstrate any; that its decision was in several respects arbitrary and capricious and did not constitute "reasoned rulemaking" because evidence in the record was inadequately evaluated; and that FCC deprived commenters of the ability to evaluate what the FCC relied on in adopting these inadequate rules by hiding information that they had in their possession but refused to disclose until months after the Report and Order was released. We want the Court to tell the FCC that it must reconsider and review these rules in light of the evidence in the record and to do so thoroughly. If FCC does that, we believe that they will have a much more difficult time than they have had so far in reaffirming the BPL rules without additional provisions that will protect the Amateur Service better against interference than the ineffective rules do now.

 

We did consider doing this "on the cheap". I am, as I told Dave and Joel, very comfortable in the Court of Appeals. I have fought the FCC and won, and sided with them and won, almost a dozen times over the years (though seldom in rulemaking appeals). But if we are going to do this, we would like to have the expertise of lawyers who do appellate litigation in this court, in this area of the law, all the time, and who are recognized as being the best, so that we maximize our chances of winning. We have found two preeminent firms that do this. We want some visibility and we want competence. Litigation in the United States Court of Appeals for the D.C. Circuit is, as an associate of mine once put it, very similar to the Supreme Court. Many describe the D.C.Circuit as the "second most important Court in the United States". It is very much like racing at Indianapolis. You want the best driver and pit crew you can hire. We have too much to lose not to give it our best shot.

 

I agree substantially with your last paragraph. In the end, the marketplace may decide that BPL is the wrong way to go. We are through attempting to persuade bureaucrats that BPL is a bad idea. They can't be persuaded, apparently. With respect to politicians, it is a tough sell also, but the work of Amateurs in the recent hurricanes did buy us some equity on the Hill. That is not a foregone conclusion, at all.

 

Hope this helps. I will flesh it out as best I can shortly.

 

73, Chris W3KD