[arrl-odv:15859] ARRL v. FCC (BPL Appeal) Reply Brief as filed
Greetings. Yesterday afternoon (the deadline), the WilmerHale firm filed our reply brief in the Court of Appeals for the District of Columbia Circuit. A copy is attached. I think it is a great job. Thanks to Ed Hare for his input into the language of parts of it as well. You will note that this brief focuses largely on the FCC's unprecedented failure to protect mobile stations from interference if the BPL operator reduces its radiated emissions by 20 dB below the Part 15 maxima, even if harmful interference persists thereafter. This represents, likely, our best chance of obtaining a remand. The reply brief also hits very hard on the inapplicability of the 40 dB per decade of distance extrapolation factor applied to BPL system measurements. I was disheartened?when I read?the briefs of the?FCC and their intervenors on this subject, because they seemed to justify holding up on?revisiting the 40 dB/decade argument,?but I think that the argument in this reply brief addresses and rebuts?the FCC's and their intervenors' arguments very well indeed. This brief avoids the trap that the FCC and the intervenors attempted to?set for us by their argument that the FCC specifically found that BPL will not normally cause interference, so there is no Section 301 violation, and FCC's technical conclusion is entitled to great deference by the Court. We did not spend time arguing whether or not the FCC made a correct?technical factual finding. Had we done so, the Court would simply defer to the FCC. So, this brief is surgical. I hope you will agree that this is a good brief. As Jon Frankel said this morning in an e-mail to the WilmerHale team and me: "In a perfect world, these briefs would trigger a remand. As it stands, we will probably have to beat them senseless at oral argument." That pretty much sums it up. 73, Chris W3KD ________________________________________________________________________ AOL now offers free email to everyone. Find out more about what's free from AOL at AOL.com.
I don't know why some of you didn't get this posting, but at least Cliff and Dick Isely didn't get it. Others did. I am puzzled, but here is what I sent out on Wednesday. 73, Chris W3KD/7 -----Original Message----- From: w3kd@aol.com To: arrl-odv@arrl.org; ehare@arrl.org; kkeane@arrl.org; dhenderson@arrl.org Sent: Wed, 1 Aug 2007 10:46 am Subject: ARRL v. FCC (BPL Appeal) Reply Brief as filed Greetings. Yesterday afternoon (the deadline), the WilmerHale firm filed our reply brief in the Court of Appeals for the District of Columbia Circuit. A copy is attached. I think it is a great job. Thanks to Ed Hare for his input into the language of parts of it as well. You will note that this brief focuses largely on the FCC's unprecedented failure to protect mobile stations from interference if the BPL operator reduces its radiated emissions by 20 dB below the Part 15 maxima, even if harmful interference persists thereafter. This represents, likely, our best chance of obtaining a remand. The reply brief also hits very hard on the inapplicability of the 40 dB per decade of distance extrapolation factor applied to BPL system measurements. I was disheartened?when I read?the briefs of the?FCC and their intervenors on this subject, because they seemed to justify holding up on?revisiting the 40 dB/decade argument,?but I think that the argument in this reply brief addresses and rebuts?the FCC's and their intervenors' arguments very well indeed. This brief avoids the trap that the FCC and the intervenors attempted to?set for us by their argument that the FCC specifically found that BPL will not normally cause interference, so there is no Section 301 violation, and FCC's technical conclusion is entitled to great deference by the Court. We did not spend time arguing whether or not the FCC made a correct?technical factual finding. Had we done so, the Court would simply defer to the FCC. So, this brief is surgical. I hope you will agree that this is a good brief. As Jon Frankel said this morning in an e-mail to the WilmerHale team and me: "In a perfect world, these briefs would trigger a remand. As it stands, we will probably have to beat them senseless at oral argument." That pretty much sums it up. 73, Chris W3KD AOL now offers free email to everyone. Find out more about what's free from AOL at AOL.com. ________________________________________________________________________ AOL now offers free email to everyone. Find out more about what's free from AOL at AOL.com.
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