AMERICAN RADIO RELAY LEAGUE, INC. v. F.C.C.No. 06-1343.
524 F.3d 227 (2008)
AMERICAN RADIO RELAY LEAGUE, INCORPORATED, Petitioner
FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
Ambient Corporation, et al., Intervenors.
FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
Ambient Corporation, et al., Intervenors.
United States Court of Appeals, District of Columbia Circuit.
Argued October 23, 2007.
Decided April 25, 2008.
Jonathan J. Frankel argued the cause for petitioner. With him on the briefs were Christopher D. Imlay, William T. Lake, Dileep S. Srihari, and Daniel A. Zibel. C. Grey Pash, Jr., Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Thomas O. Barnett, Assistant Attorney General, Robert B. Nicholson and Robert J. Wiggers, Attorneys, Samuel L. Feder, General Counsel, Federal Communications Commission, Joseph R. Palmore, Deputy General Counsel, Richard K. Welch, Associate General Counsel, and John E. Ingle, Deputy Associate General Counsel. George Y. Wheeler, John B. Richards, Thomas B. Magee, James N. Horwood, Tillman L. Lay, Jill Mace Lyon, Brett Kilbourne, Mitchell Lazarus, and Harry F. Cole were on the brief for intervenors.
Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
Concurring opinion by Circuit Judge TATEL.
Opinion concurring in part, concurring in the judgment in part, and dissenting in part by Circuit Judge KAVANAUGH.
The American Radio Relay League, Inc., petitions on behalf of licensed amateur radio operators for review of two orders of the Federal Communications Commission promulgating a rule to regulate the use of the radio spectrum by Access Broadband over Power Line ("Access BPL") operators. The Commission concluded that existing safeguards combined with new protective measures required by the rule will prevent harmful interference to licensees
Under section 301 of the Communications Act, the owners and operators of "any apparatus for the transmission of energy or communications or signals by radio" are required to obtain a license as a condition of operation and they may not use or operate any such apparatus, for instance, "when interference is caused by such use or operation with the transmission of such energy, communications, or signals." 47 U.S.C. § 301. Section 302 of the Act authorizes the Commission, "consistent with the public interest, convenience, and necessity," to promulgate regulations for manufacture and use governing "the interference potential of devices which in their operation are capable of emitting radio frequency energy ... in sufficient degree to cause harmful interference to radio communications." Id. § 302a(a). The Commission's rules, specifically Part 15, define "harmful interference" as "[a]ny emission, radiation or induction that endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommunications service." 47 C.F.R. § 15.3(m). The rules governing unlicensed devices also include two provisions to protect licensed radio operators from unlicensed devices: an ex ante precondition of operation that a device not cause "harmful interference," id. § 15.5(b), and an ex post requirement that a device "cease" operation if "harmful interference" occurs, id. § 15.5(c).
The Commission, upon concluding that "the introduction of new high-speed [Access] BPL technologies warrants a systematic review of the Part 15 rules in order to facilitate the deployment of this new technology, promote consistency in the rules and ensure the ongoing protection of the licensed radio services," issued a notice of inquiry. Notice of Inquiry, Carrier Current Systems, Including Broadband Over Power Line Systems ("NOI"), 18 F.C.C.R. 8498, 8503 (April 28, 2003). Therein it stated that in the process of Access BPL transmission, devices installed along electric power lines transmit radio frequency energy over the 1.7-80 MHz spectrum, creating potential to interfere with the ability of nearby radio operators to send and receive signals on the same frequencies. Id. at 8499-500, 8505-06. Licensed radio operators on this part of the spectrum include public safety and federal government agencies, aeronautical navigation, maritime, radio-astronomy, citizen band radio, and amateur radio operators. Id. at 8506. Subsequently, in announcing a proposed rule, the Commission stated that its policy was to "promote and foster the development of [the] new technology [Access BPL] with its concomitant benefits while at the same time ensuring that existing licensed operations are protected from harmful interference." Notice of Proposed Rule Making, Carrier Current Systems, Including Broadband Over Power Line Systems ("NPRM"), 19 F.C.C.R. 3335, 3355 (Feb. 23, 2004).
The Commission acknowledged that "some cases of harmful interference may be possible from Access BPL emissions at levels up to the Part 15 limits" but it was satisfied that "the benefits of Access BPL service warrant acceptance of a small and manageable degree of interference risk." Id. at 21,276. The Commission concluded that the risk of such harmful interference was "low." Id. at 21,275; see id. at 21,283. Regarding mobile operations, such as amateur radios in automobiles, the Commission concluded that the requirement that Access BPL operators "notch" their emitted power to a level at least 20 dB below emission limits on a frequency band would be "generally ... sufficient to resolve any harmful interference that might occur to mobile operations." Id. at 21,294. The Commission referenced its findings that "[only] low signal levels [are] allowed under the Part 15 emission limits" and that "a mobile transceiver can readily be repositioned to provide some separation from the Access BPL operation." Id.
In reaching its "low"—likelihood conclusion, the Commission stated that "[t]he record and our investigations indicate that [Access] BPL network systems can generally be configured and managed to minimize and/or eliminate ... harmful interference potential [to licensed radio services]." Id. at 21,266, 21,322. The Commission also relied on "information provided by our field tests," "our own field measurements of Access BPL installations," and "our own field testing." Id. at 21,275-76, 21,282, 21,296. Following issuance of the NOI, the League sought disclosure under the Freedom of Information Act ("FOIA") of the Commission's studies related to Access BPL systems. The Commission denied that request except as to one document that it placed in the record in the fall of 2003. When the League filed a second FOIA request citing the Order, the Commission released five studies in redacted
The League sought reconsideration, and upon its denial, with a clarification,
The League seeks vacatur of the rule on four grounds. The League contends that: First, without acknowledging it, the Commission abrogated seventy years of precedent by invoking section 302 of the Act to authorize the operation of unlicensed devices that could interfere with licensed devices, and by no longer requiring them to cease operation if they actually cause harmful interference. Second, because "[t]he lynchpin" of the rule "is a series of studies conducted by the [Commission's] engineers" that have never been made available in unredacted form, their non-disclosure violates the APA's notice and comment requirements. Pet.'s Br. at 18. Third, the rule is based on a flawed assumption that Access BPL emissions under 30 MHz decay by 40 dB per decade; consequently, use of this extrapolation factor to measure Access BPL emissions is arbitrary and capricious given the absence of any evidentiary basis in the rulemaking record and the Commission's refusals to consider empirical evidence supporting a lower extrapolation factor of 20 dB per decade or an alternative sliding-scale formula. Fourth, the Commission failed to consider adequately a proposal to limit Access BPL systems to the frequency band between 30 and 50 MHz, as a "workable" way to ensure that they do not cause harmful interference in those frequencies "uniquely well-suited to licensed long-distance communications such as ... amateur radio." Id. at 43-44. The Commission rejects all of these contentions.
Our review of the Commission's exercise of its regulatory authority is deferential, considering whether the Commission's action was arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2); see 28 U.S.C. § 2342(1); 47 U.S.C. § 402. An agency need only articulate a "rational connection between the facts found and the choice made," Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co.,
The Commission has long interpreted section 301 of the Act to allow the unlicensed operation of a device that emits radio frequency energy as long as it does not "transmit enough energy to have a significant potential for causing harmful interference" to licensed radio operators. Revision of Part 15 of the Commission's Rules Regarding Ultra-Wideband Transmission Systems, 19 F.C.C.R. 24,558, 24,589 & n. 179 (2004) ("Ultra-Wideband Order"); see Revision of Part 15 of the Rules, 4 F.C.C.R. 3493, 3493 (1989); Part 15 Incidental and Restricted Radiation Devices, 20 Fed.Reg. 10,055, 10,056 (Dec. 29, 1955). The League contends that in promulgating the rule the Commission has departed from its longstanding interpretation of section 301 as including an ex post shut-down requirement where harmful interference occurs "by forcing licensed users to accept harmful interference from unlicensed operations and permitting unlicensed [Access] BPL operators to continue their interference-generating activities." Pet.'s Br. at 21. The League does not dispute that an agency may change its position and depart from its precedent. See Action for Children's Television v. FCC,
The Commission determined, in accord with its precedent, that such interference as may remain from Access BPL emissions under the rule will not rise to the level of harmful interference for mobile radio operators in light of the nature of mobile antennae reception. See Order, 19 F.C.C.R. at 21,294-95; Reconsideration Order, 21 F.C.C.R. at 9318-21, 9328. The rule requires Access BPL operators to reduce their signal by 20 dB if such harmful interference occurs to any radio operation. The Commission determined that for mobile operators the remaining interference after this "notch" "would not be significantly greater than the background noise at the distances normally used for protection against harmful interference." Reconsideration Order, 21 F.C.C.R. at 9319; see Order, 19 F.C.C.R. at 21,294. Consequently, the Commission concluded that "Access BPL signals [after a 20 dB reduction] will not constitute harmful interference to mobile, and in particular, amateur mobile communications." Reconsideration Order, 21 F.C.C.R. at 9320. This is because, the Commission found, "[t]he effect of [the Part 15 emission] limits will be to constrain the harmful interference potential of [Access BPL] systems to relatively short distances from the power lines that they occupy." Order, 19 F.C.C.R. at 21,282.
Put otherwise, the Commission has applied its longstanding definition of harmful
The League's related contention that the Commission has departed from its precedent in interpreting the relationship between section 301 and section 302 of the Act fares no better. The Commission stated in responding to the League's petition for reconsideration that because Access BPL systems are "capable of emitting [radio frequency] energy that can cause harmful interference to radio communications," they "fall under the Commission's jurisdiction as conferred by Section 302 of the Communications Act, rather than Section 301." Id. at 9327-28. The League misconstrues this statement to mean that the Commission is no longer regulating Access BPL under section 301.
More persuasive is the League's contention that the Commission has failed to comply with the APA by not disclosing in full certain studies by its staff upon which the Commission relied in promulgating the rule.
The APA requires an agency to publish "notice" of "either the terms or substance of the proposed rule or a description of the subjects and issues involved," in order to "give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments," and then, "[a]fter consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose." 5 U.S.C. § 553(b)-(c). Longstanding precedent instructs that "[n]otice is sufficient `if it affords interested parties a reasonable opportunity to participate in the rulemaking process,' and if the parties have not been `deprived of the opportunity to present relevant information by lack of notice that the issue was there.'" WJG Tel. Co., Inc. v. FCC,
Under APA notice and comment requirements, "[a]mong the information that must be revealed for public evaluation are the `technical studies and data' upon which the agency relies [in its rulemaking]." Chamber of Commerce v. SEC (Chamber of Commerce II),
Public notice and comment regarding relied-upon technical analysis, then, are "[t]he safety valves in the use of... sophisticated methodology." Sierra Club v. Costle,
Chamber of Commerce II, 443 F.3d at 900 (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys.,
At issue are five scientific studies consisting of empirical data gathered from field tests performed by the Office of Engineering and Technology. Two studies measured specific Access BPL companies' emissions, and three others measured location-specific emissions in pilot Access BPL areas in New York, North Carolina, and Pennsylvania. In placing the studies in the rulemaking record, the Commission has redacted parts of individual pages, otherwise relying on those pages. In responding to the League's FOIA request, the Commission stated that "certain portions of [these] presentations have been redacted, as they represent preliminary or partial results or staff opinions that were part of the deliberative process, exempt from disclosure under Section 0.457(e) of the Commission's rules and Section 552(b)(5) of the FOIA." Letter from Edmond Thomas, Chief, FCC Ofc. of Eng'g & Tech., to Christopher Imlay, Gen. Counsel, Am. Radio Relay League (Jan. 4, 2005). Upon reconsideration, the Commission reaffirmed that "the redacted portions ... referred to internal communications that were not relied upon in the decision making process," while reiterating that Commission statements in the Order "point" to the partially redacted studies—including the Commission's "own field investigations of [Access] BPL experimental sites"—and "clarify[ing] that in this proceeding, the Commission relied ... on its own internally conducted studies." Reconsideration Order, 21 F.C.C.R. at 9324-25. The court, pursuant to the Commission's offer, Resp.'s Br. at 44 n. 35, has reviewed in camera the partially redacted pages in unredacted form; they show staff summaries of test data, scientific recommendations, and test analysis and conclusions regarding the methodology used in the studies. All pages in the studies are stamped "for internal use only."
It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment. "It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that, [to a] critical degree, is known only to the agency." Portland Cement Ass'n, 486 F.2d at 393; see NARUC, 737 F.2d at 1121. Where, as here, an agency's determination "is based upon `a complex mix of controversial and uncommented upon data and calculations,'" there is no APA precedent allowing an agency to cherry-pick a study on which it has chosen to rely in part. See Solite Corp. v. EPA,
The League has met its burden to demonstrate prejudice by showing that it "ha[s] something useful to say" regarding
The Commission nonetheless maintains that it need not publish for notice and comment the five studies in full, including portions which it styles as "its staff's internal analysis of data in a rulemaking proceeding," Resp.'s Br. at 44, "regardless of whether the agency accepts or rejects or ignores" this material, id. at 22. It relies on EchoStar Satellite L.L. C. v. FCC,
The Commission's other bases for redaction and non-publication do not withstand analysis. The FOIA's deliberative process privilege, invoked by the Commission in responding to the League's FOIA request, "does not authorize an agency to throw a protective blanket over all information.... Purely factual reports and scientific studies cannot be cloaked in secrecy by an exemption designed to protect only those internal working papers in which opinions are expressed and policies formulated and recommended." Bristol-Myers Co. v. Fed. Trade Comm'n,
The narrowness of our holding under section 553 of the APA is manifest. The redacted studies consist of staff-prepared scientific data that the Commission's partial reliance made "critical factual material." Owner-Operator Indep. Drivers Ass'n, 494 F.3d at 201 (quoting Air Transp. Ass'n of Am. v. FAA,
As our colleague notes, see Concurring & Dissenting Op. by Judge Kavanaugh at 245, in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council,
On remand, the Commission shall make available for notice and comment the unredacted "technical studies and data that it has employed in reaching [its] decisions," Conn. Light & Power Co., 673 F.2d at 530; see Chamber of Commerce II, 443 F.3d at 903; Idaho Farm Bureau Fed'n v. Babbitt,
The League also challenges the Commission's decision to retain the extrapolation factor of 40 dB per decade to measure Access BPL radio emissions at frequencies below 30 MHz, which is the band primarily used by amateur radio operators, as unsupported by empirical evidence.
The "distance extrapolation factor" is the projected rate at which radio frequency strength decreases from a radiation-emitting source, used to estimate signal decay for Access BPL and resulting interference to radio operators at various distances from a source without actually measuring such emissions. See Order, 19 F.C.C.R. at 21,303; NOI, 18 F.C.C.R. at 8508; 47 C.F.R. § 15.31(f). The Commission's Part 15 rules, § 15.31(f)(2), include a generally applicable extrapolation factor of 40 dB per decade for any device that may have potential to interfere with licensed operators at frequencies below 30 MHz. The Commission acknowledged that the extrapolation factor "is an important consideration in determining compliance with the emission limits in the rules" because "[i]f the extrapolation factor is 20 dB per decade instead of 40 dB per decade, the correction factor would be smaller, thus resulting in higher value for the transmitted emission levels [of Access BPL devices]." Reconsideration Order, 21 F.C.C.R. at 9317 & n. 55; see Order, 19 F.C.C.R. at 21,316. Nonetheless, the gaps in the Commission's explanation for applying the pre-existing extrapolation factor to Access BPL systems demonstrate its inadequacy. Cf. Hispanic Info. & Telecomms. Network, Inc., 865 F.2d at 1297-98.
The League points out that to confirm its choice of a 40 dB per decade factor the Commission relied on modeling data using a method of measurement that is not based on empirical evidence derived from testing or scientific observation. See Order, 19 F.C.C.R. at 21,310; Reconsideration Order, 21 F.C.C.R. at 9318. Assuming that modeling may prove instructive, the comments to which the Commission points, see Order, 19 F.C.C.R. at 21,265; Reconsideration Order, 21 F.C.C.R. at 9318, at best suggest an alternative interpretation of empirical data reported by the National Telecommunications and Information Administration ("NTIA"). But the NTIA study itself casts doubt on the Commission's decision to retain the preexisting extrapolation factor rather than suggesting
But that aside, the Commission offered no reasoned explanation for its dismissal of empirical data that was submitted at its invitation. Order, 19 F.C.C.R. at 21,310. The League submitted three studies published in 2005 by the Commission's counterpart in the United Kingdom, as well as additional analysis of its own, suggesting that an extrapolation factor of 20 dB per decade may be more appropriate for Access BPL.
On remand, the Commission shall either provide a reasoned justification for retaining an extrapolation factor of 40 dB per decade for Access BPL systems sufficient to indicate that it has grappled with the 2005 studies, or adopt another factor and provide a reasoned explanation for it. The court need not address the League's contention that the Commission failed to consider a proposal of a sliding-scale extrapolation factor, assuming it was properly presented to the Commission through a reference in an exhibit accompanying the League's petition for reconsideration.
Finally, the League contends the Commission gave inadequate consideration to a proposal that would restrict Access BPL systems to the frequency band between 30 MHz and 50 MHz, rather than allowing use throughout the 1.7-80 MHz spectrum range.
An agency is required "to consider responsible alternatives to its chosen policy and to give a reasoned explanation for its rejection of such alternatives." City of Brookings Mun. Tel. Co., 822 F.2d at 1169 (quoting Farmers Union Cent. Exch., Inc. v. Fed. Energy Regulatory Comm'n,
The Commission explained that the alternative proposal would have "restrict[ed] Access BPL system design and reduce[d] system capacity," as well as "increas[ed]... its cost to the public ... without corresponding benefit or need." Reconsideration Order, 21 F.C.C.R. at 9321. Viewing the Access BPL remediation mechanisms in the rule as sufficient to protect amateur operations, id. at 9325-26; see also Order, 19 F.C.C.R. at 21,283-84, the Commission noted that the alternative proposal requested a system-wide "complete avoidance of all HF frequencies [below 30 MHz]" without regard to whether there were any amateurs near an Access BPL installation. See Reconsideration Order, 21 F.C.C.R. at 9321. The League maintains that the Commission's response was empirically deficient, but the Commission, in fact, discussed the difference between amateur operations and other operations that received band protection. See id. at 9323 (citing Order, 19 F.C.C.R. at 21,289). Its analysis reflects the Commission's considered technical judgment in light of its policy to foster Access BPL technology because it offers the potential for establishing "a significant new medium for extending broadband access to American homes and businesses," could be made available nearly everywhere, including rural areas with power lines, and could introduce additional competition. Order, 19 F.C.C.R. at 21,266. Observing that "public safety systems merit additional protection because of the often critical and/or safety-of-life nature of the communications they provide," the Commission noted that "in many instances amateur frequencies are used for routine communications and hobby activities." Id. at 21,289. In offering an explanation for rejecting the alternative, the Commission was not required to do more. See City of Waukesha v. EPA,
Accordingly, we grant the petition in part and remand the rule to the Commission. See Engine Mfrs. Ass'n, 20 F.3d at 1184; Radio-Televison News Dirs. Ass'n v. FCC,
TATEL, Circuit Judge, concurring:
I write separately to emphasize that in my view, the disclosure ordered by the
We described the APA's "whole record" requirement in Walter O. Boswell Memorial Hospital v. Heckler,
A similar situation confronts us here. Given that the Commission relied on the studies at issue, there can be no doubt that they form part of the administrative record—a proposition unaffected by the Commission's claim that it chose not to rely on various parts of the studies. See 28 U.S.C. § 2112(b) ("The record to be filed in the court of appeals ... shall consist of the order sought to be reviewed or enforced, the findings or report upon which it is based, and the pleadings, evidence, and proceedings before the agency ... concerned." (emphasis added)); FED. R.APP. P. 16 ("The record on review or enforcement of an agency order consists of ... any findings or report on which it is based." (emphasis added)). Nor is there any doubt that, as our case law makes clear, the APA means exactly what it says: an agency must make the "whole record" available, especially where, as here, the undisclosed portions might very well undercut the agency's ultimate decision, see Maj. Op. at 237-38.
This conclusion makes sense given that in the context of the APA, arbitrary and capricious review and the substantial evidence test "`are one and the same' insofar as the requisite degree of evidentiary support is concerned." Consumers Union of U.S., Inc. v. FTC,
This is hardly a novel conclusion. In previous informal rulemaking cases, we ordered additional agency disclosures to facilitate meaningful arbitrary and capricious review of agency action. In Kent County, Delaware Levy Court v. EPA,
It is true, as we pointed out in Boswell Memorial, that APA section 706 "does allow review based not only on `the whole record,' but also on `those parts of it cited by a party.'" 749 F.2d at 793 (quoting 5 U.S.C. § 706). Acknowledging that such an approach would sometimes be "fundamentally unfair," id., however, we carefully circumscribed this possibility:
KAVANAUGH, Circuit Judge, concurring in part, concurring in the judgment in part, and dissenting in part.
To expand consumer access to broadband Internet services, increase competition against DSL and cable modem providers, and lower prices for consumers, the FCC adopted a rule to facilitate the use of electric power lines for broadband Internet access. The petitioner, an organization of amateur radio operators, has challenged this "Access Broadband Over Power Line Systems" rule. I agree with the majority opinion that the FCC's rule complies with the Communications Act.
Applying the Administrative Procedure Act and our Portland Cement line of decisions, however, the majority opinion remands for the FCC to release redacted portions of certain FCC staff documents analyzing field tests of broadband over power lines. See Portland Cement Ass'n v. Ruckelshaus,
Applying the State Farm principle, the majority opinion also remands for the FCC to further explain why it chose to use a certain measurement, or "extrapolation factor," to estimate the interference that broadband over power lines will cause to licensed radio services. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
I therefore join Parts I, IIA, and IID of the majority opinion. I concur in the judgment as to Part IIB, and I dissent from Part IIC.
In issuing its rule, the FCC relied on various technical studies, including an NTIA report; the various interference studies filed in the record, including petitioner's studies; and the unredacted portions of certain internal FCC staff studies. Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Mem. Op. and Order, 21 F.C.C.R. 9308, 9324-25 ¶ 47 (2006). The FCC publicly disclosed all those materials. But the Commission did not release certain redacted portions of the internal staff studies on which it relied. Id. Citing § 553 of the APA, petitioner says the FCC must release the redacted portions of the staff studies so that interested parties can comment on them and so the FCC, in turn, can consider those comments.
Petitioner's argument would be unavailing if analyzed solely under the text of APA § 553. The APA requires only that an agency provide public notice and a comment
But beginning with the Portland Cement case in 1973—which was decided in an era when this Court created several procedural requirements not rooted in the text of the APA—our precedents have required agencies to disclose, in time to allow for meaningful comment, technical data or studies on which they relied in formulating proposed rules. See Portland Cement Ass'n v. Ruckelshaus,
The majority opinion concludes that the Portland Cement requirement does not allow the FCC to redact portions of studies when the studies otherwise must be disclosed under Portland Cement. I accept the majority opinion's conclusion as the best interpretation of our Portland Cement line of decisions.
I write separately to underscore that Portland Cement stands on a shaky legal foundation (even though it may make sense as a policy matter in some cases). Put bluntly, the Portland Cement doctrine cannot be squared with the text of § 553 of the APA. And Portland Cement's lack of roots in the statutory text creates a serious jurisprudential problem because the Supreme Court later rejected this kind of freeform interpretation of the APA. In its landmark Vermont Yankee decision, which came a few years after Portland Cement, the Supreme Court forcefully stated that the text of the APA binds courts: Section 553 of the APA "established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures." Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,
Because there is "nothing in the bare text of § 553 that could remotely give rise" to the Portland Cement requirement, some commentators argue that Portland Cement is "a violation of the basic principle of Vermont Yankee that Congress and the agencies, but not the courts, have the power to decide on proper agency procedures." Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75 GEO. WASH. L.REV. 856, 894 (2007). At the very least, others say, the Supreme Court's decision in Vermont Yankee raises "a question concerning the continuing vitality of the Portland Cement requirement that an agency provide public notice of the data on which it proposes to rely in a rulemaking." 1 RICHARD J. PIERCE, ADMINISTRATIVE LAW TREATISE § 7.3, at 435 (4th ed.2002).
I do not believe Portland Cement is consistent with the text of the APA or Vermont Yankee. In the wake of Vermont
The majority opinion also holds that the FCC did not provide a sufficiently "reasoned explanation" for its choice of an extrapolation factor to measure interference from broadband over power lines. I disagree.
The FCC estimates the radio-frequency interference caused by broadband over power lines to determine whether broadband over power lines will cause unlawful "harmful interference" to licensed radio operators. In selecting guidelines to estimate interference, the FCC has adhered to a pre-existing "extrapolation factor" that it already used to estimate interference caused by broadband over power lines and other regulated technologies. Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Carrier Current Systems, Report and Order, 19 F.C.C.R. 21265, 21310 ¶ 109 (2004). The National Telecommunications and Information Administration, a federal agency within the Department of Commerce, provided data supporting the existing extrapolation factor. Id. Another commenter, Ameren Energy Communications, also advocated this measurement. Id. By contrast, Aeronautical Radio, Inc. and ARRL, the petitioner here, sought the use of a different extrapolation factor. Id.
Given the "lack of conclusive experimental data" and disagreements among commenters, the Commission stated that it would continue to use the existing extrapolation factor. Id. The Commission added that it would "revisit" the issue if new information became available. Id.
In its reconsideration order, after receiving new studies conducted in the United Kingdom, the Commission found that those studies did not support a change to the extrapolation factor in light of the factual disagreements and uncertainty discussed in the initial order. The Commission stated: "No new information has been submitted that would provide a convincing argument for modifying this requirement at this time." Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Mem. Op. and Order, 21 F.C.C.R. 9308, 9317-18 ¶ 26 (2006).
Applying the State Farm doctrine, the majority opinion remands for further explanation from the FCC. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
Section 706 provides that courts set aside agency rules that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Arbitrary-and-capricious review under § 706 is "narrow," and "a court is not to substitute its judgment for that of the agency." State Farm, 463 U.S. at 43, 103 S.Ct. 2856. A reviewing court "may not set aside an agency rule that is rational, based on consideration of the relevant
In my judgment, the FCC's explanation in this case suffices. The FCC's choice of extrapolation factor to estimate interference from broadband over power lines is a highly technical determination committed to the Commission's expertise and policy discretion. Cf. Mobile Relay Assocs. v. FCC,
* * *
The two issues on which I write separately prompt a broader observation. In appropriate cases or controversies, courts of course must be vigilant in ensuring that agencies adhere to the plain text of statutes imposing substantive and procedural obligations. See, e.g., Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
Over time, those twin lines of decisions have gradually transformed rulemaking— whether regulatory or deregulatory rulemaking—from the simple and speedy practice contemplated by the APA into a laborious, seemingly never-ending process. The judicially created obstacle course can hinder Executive Branch agencies from rapidly and effectively responding to changing or emerging issues within their authority, such as consumer access to broadband, or effectuating policy or philosophical changes in the Executive's approach to the subject matter at hand. The trend has not been good as a jurisprudential matter, and it continues to have significant practical consequences for the operation of the Federal Government and those affected by federal regulation and deregulation.
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