MEMORANDUM To: Officers and Directors Copy: Ed Hare, W1RFI From: Chris Imlay, W3KD Date: June 20, 2011 Subject: BPL Proceeding on Remand, ET Docket 04-37; Status of Proceeding; CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED COMMUNICATION; WORK-PRODUCT. Greetings. It is timely to bring you all up to speed on the BPL proceeding, because something is going to happen relatively soon, and perhaps very soon in absolute terms. The Executive Committee has closely overseen our advocacy efforts over the past two years in this proceeding. We have been very active (as my last three or four Board reports have indicated) in making ex parte filings in this Docket proceeding, in order to insure that the record is as complete as possible with technical arguments in favor of our desired outcome. We have recently made what I thought would be the last of these written filings, and Ed Hare and I were preparing to make a short in-person visit to OET to argue these points (which the Executive Committee had approved). However, OET, on June 10, 2011 finally sent a draft Further Report and Order to the Commissioners. It is now “on circulation” meaning that the Commissioners are considering the draft Order, which will ultimately be issued (without consideration at an open Sunshine Act meeting) once each of the five Commissioners has approved some version of it. It is possible that one or more of the Commissioners could ask OET to edit some part of it, and there may be some disagreements with respect to the draft Report and Order, so releasing it could take some weeks, or even months. There are a few items on circulation at FCC that have been in that status for two years now. But the list of items on circulation is short, and this Chairman moves items fairly quickly, so we do anticipate an order to be released some time soon, perhaps even prior to the Board meeting. To refresh your recollection, our “bottom line” requirement is for FCC to adopt new BPL rules that require full-time notching of Amateur allocations by BPL companies, to a notch depth of between 30 and 35 dB. If this is incorporated in the rules, we have said we will be satisfied. We have made numerous filings justifying a distance extrapolation factor that reflects the signal decay of a radiated HF BPL signal with perpendicular distance from the power line, but frankly, if we get full time, 30 or 35 dB mandatory notching of Amateur bands, the distance extrapolation factor is not as important. We have told FCC that we insist on a scientifically valid extrapolation factor, however, and that outside the near field, that factor is much closer to 20 dB/decade of distance than to the 40 dB that is in the FCC rules now. We have proven that, we believe adequately. Keep in mind that this proceeding has languished badly at FCC. The Further Notice of Proposed Rule Making in this docket, post-remand from the Court of Appeals, will be two years old as of July 17 of this year. The Court of Appeals remanded this case to the Commission in an opinion released April 25, 2008 and it released its Mandate on June 13, 2008, more than three years ago(!). The voluminous filings we have made since the Further Notice was released are as follows. Each has argued strenuously for (1) full-time, mandatory 35 dB notching of all Amateur bands; and (2) a scientifically valid signal decay extrapolation factor. 1. Comments on FNPRM, filed September 23, 2009. 2. Reply Comments on FNPRM, filed October 7, 2009. 3. Notice of ex parte Presentation (made by me to the Commission’s Broadband Team and the Office of Engineering and Technology), November 3, 2009. 4. Notice of ex parte Presentation (made by Dave Sumner and me to the offices of four of the Commissioners on November 2, 2011) filed November 5, 2009. 5. Notice of px parte Presentation (made by Dave Sumner and me to the office of the Chairman on November 24, 2011) filed December 3, 2009. 6. Written ex parte submission of 150 pages in rebuttal to a written ex parte presentation of Current Technologies, filed by ARRL on January 11, 2010 with numerous exhibits. 7. Written ex parte submission with numerous technical exhibits, demonstrating that 35 dB notch depth is in fact an industry standard that can be met without substantial adverse impact on BPL systems, filed November 30, 2010. 8. Interference complaint regarding IBEC BPL systems in Arrington and Fairfield, Virginia, Somerset, Pennsylvania and Martinsville, Indiana, filed with OET and EB on December 29, 2010. 9. Equipment Authorization Complaint with respect to IBEC BPL Regenerator Units and Customer Access Units, premised on poor correlation between FCC lab test submissions and deployed BPL systems, which are capable of much higher power than claimed by the manufacturer. Filed February 10, 2011. 10. Ex parte Submission of 23 pages, including Hare rebuttal of NTIA Phase 2 BPL study, demonstrating that NTIA “cooked the books” in its BPL Phase 2 analysis in support of a 40 dB/decade distance extrapolation factor. Filed most recently June 17, 2011 (copy attached to this memo). All of these filings except the last one (which is attached) have been sent to the Board when filed, but to view them all in one place, please see: http://fjallfoss.fcc.gov/ecfs/comment_search/execute?proceeding=04-37&applic... During all these filings, the BPL industry, or what is left of it, filed very little. For awhile Current Technologies attempted to duel with us, but they have not filed anything since December 30, 2009, and that was limited to an effort to retain the 40 dB/decade extrapolation factor (the FCC proposed a 30 dB/decade factor in the Further NPRM, but that was an effort to “split the baby” and had no scientific underpinnings at all). Nothing, in fact, was filed since that date on behalf of the BPL industry until May 4, 2011, when UTC, the Utilities Telecom Council, filed a two-page statement arguing that 35 dB of full time notching of Amateur bands would be detrimental to BPL functioning and that ARRL in effect lied about it. A copy of that filing is attached for your review as well. The timing, the content and the copy recipients of that letter are all very suspicious indeed. Ed Hare and I have reviewed this and are of the view that the UTC letter was most likely solicited by Alan Stilwell, an OET staff person who has been antagonistic to ARRL in this proceeding for a long time now. While we are content that we have adequately argued the necessity for a full-time, 30-35 dB notch of all Amateur bands by BPL users, FCC may well have solicited UTC to file something so that they can have a record basis for affording some lesser relief than that which we have essentially demanded of them for three years now. The last advocacy effort that the Executive Committee approved was going to be an in-person meeting by Ed Hare and me with OET to explain our technical arguments one more time, especially with respect to the 30-35 dB notch depth. Now that there is an item on circulation among the Commissioners, such a meeting with OET staff would likely be a waste of ARRL resources. However, Ed is now working on a last-minute rebuttal of the two-page UTC filing, and we will consider presenting that directly to the Chairman’s office. We will in any case want to copy the Chairman and Commissioners with our rebuttal to UTC. It may be that the Board will have an opportunity at this upcoming Board meeting to address how ARRL will respond to the FCC’s anticipated Further Report and Order in this Docket. We will keep you, and of course the Executive Committee, apprised of our proposed course of action in the very near term. Please contact Ed Hare or me with any questions about this. 73, Chris W3KD Christopher D. Imlay Booth, Freret, Imlay & Tepper. P.C. 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG