Chris: I agree. Please make the two changes that have already been identified. Dennis -----Original Message----- From: W3KD@aol.com [mailto:W3KD@aol.com] Sent: Tuesday, October 28, 2003 12:25 PM To: arrl-odv Cc: prinaldo@arrl.org Subject: [ARRL-ODV:9650] Confidential re ARRL v. FCC, United States Court of Appeals, D.C. Circuit 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