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FCC dealt setback in broadband-over-power-lines push

After legal challenge from amateur radio operators, appeals court tells federal regulators to revisit rules designed to speed rollout of new Internet service while preventing interference.

Updated at 10:58 a.m. PDT to add comment from the broadband-over-power lines industry.

Updated at 5:22 p.m. PDT to correct the number of broadband-over-power lines subscribers.

In a potential setback for fans of broadband over power lines, a federal appeals court has sided in part with amateur radio operators who challenged rules designed to speed the nascent Internet service's rollout.

When setting rules for BPL operators nearly two years ago, the Federal Communications Commission said it was trying to encourage deployment of a "third pipe" to compete with cable and DSL services, while establishing limits aimed at protecting public safety, maritime, radio-astronomy, aeronautical navigation, and amateur radio operators from harmful interference. The American Radio Relay League (ARRL), which represents amateur and ham radio operators, however, promptly sued the agency, contending that the FCC's approach was insufficient to ward off interference with its radios and inconsistent with its previous rules.

On Friday, the U.S. Appeals Court for the District of Columbia on Friday issued a ruling (PDF) that took issue with the way the FCC arrived at its rules.

During its rulemaking process, the FCC relied on five scientific studies that measured BPL devices' radio emissions, in an attempt to determine interference risks with other users of the spectrum. Although the agency released those studies during a public comment process required by federal law, it redacted portions of them, arguing they were just "internal" communications that didn't influence its deliberations. But after reviewing the unredacted studies in private, the majority of the judges agreed with the ARRL that it was against federal administrative procedure law to keep those portions under wraps, particularly since they could called the FCC's rules into question.

"It is one thing for the Commission to give notice and make available for comment the studies on which it relied in formulating the rule while explaining its non-reliance on certain parts," D.C. Circuit Judge Judith Rogers wrote. "It is quite another thing to provide notice and an opportunity for comment on only those parts of the studies that the Commission likes best."

The court also said the FCC had not offered a "reasoned explanation" for why it rejected ARRL-submitted data that could have influenced its interference estimates and potentially reshaped its rules. The judges opted to send the rules back to the FCC with instructions to clarify those points and publicize its studies more fully, although they did not overturn the rules themselves.

The court did not side entirely with the ARRL on other key points related to the substance of the rules.

For instance, the ARRL had argued that the FCC was departing from longstanding agency precedent by refusing to require that BPL operations found to cause "harmful interference" be shut down immediately--the so-called "cease-operations" rule. The court wasn't persuaded by that argument, saying the FCC had explained adequately that there isn't ample evidence that "harmful interference" is a real risk.

Still, the court's decision could be significant if it ultimately prompts revisions to the FCC's rules, which could in turn force some BPL operators to change the way they operate or create new legal uncertainty for their operations. The FCC declined to comment on the decision Monday.

The ARRL was quick to applaud the ruling.

"It is obvious that the FCC was overzealous in its advocacy of BPL, and that resulted in a rather blatant cover-up of the technical facts surrounding its interference potential," ARRL general counsel Christopher Imlay said in a statement. "Both BPL and Amateur Radio would be better off had the FCC dealt with the interference potential in an honest and forthright manner at the outset."

The United Power Line Council, which represents the BPL industry, downplayed the significance of the ruling, saying it was largely procedural and noting that the current rules remain in effect.

"We're a little surprised that the court took issue with those two issues that it did send back, but I expect the FCC will work quickly on those and come to a conclusion soon," said Brett Kilbourne, the group's director of regulatory affairs.

According to the UPLC, there were approximately 35 BPL deployments around the United States as of last year. As of the middle of last year, there were about 5,000 U.S. BPL subscribers, according to the FCC's latest data (PDF).