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Am. Radio Relay League, Inc. v. FCC - 390 U.S. App. D.C. 34, 524 F.3d 227 (2008)

Rule:

Under Administrative Procedure Act (APA) notice and comment requirements, among the information that must be revealed for public evaluation are the technical studies and data upon which the agency relies in its rulemaking. Construing 5 U.S.C.S. § 553 of the APA, the United States Court of Appeals for the District of Columbia Circuit has explained long ago that in order to allow for useful criticism, it is especially important for the agency to identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules. More particularly, disclosure of staff reports allows the parties to focus on the information relied on by the agency and to point out where that information is erroneous or where the agency may be drawing improper conclusions from it.

Facts:

The American Radio Relay League, Inc., petitioned on behalf of licensed amateur radio operators for review of two orders of the Federal Communications Commission (FCC) promulgating a rule to regulate the use of the radio spectrum by Access Broadband over Power Line (Access BPL) operators. The FCC concluded that existing safeguards combined with new protective measures required by the rule will prevent harmful interference to licensees from Access BPL radio emissions. The League challenged the conclusion, contending that the FCC has abandoned decades of precedent requiring shut down and other protections for licensees and that the rule was substantively and procedurally flawed. Moreover, the League challenged the FCC’s failure to comply with the Administrative Procedure Act (APA) by not disclosing in full certain studies by its staff upon which the FCC relied in promulgating the rule in question.

Issue:

Was the rule promulgated by the Federal Communications Commission, which regulated the use of the radio spectrum by Access BPL operators, substantively and procedurally flawed?

Answer:

Yes, in part.

Conclusion:

Pursuant to deferential review under 5 U.S.C.S. § 706(2) and 47 U.S.C.S. § 402, the Court granted the association's petition in part as to the claim that the FCC failed to comply with the Administrative Procedure Act (APA), specifically, 5 U.S.C.S. § 553, by not disclosing in full certain studies by its staff upon which the FCC relied in promulgating the rule. According to the Court, the FCC relied upon the deliberative process privilege of 5 U.S.C.S. § 552(b)(5) to redact much of the information in the studies. The association met its burden to demonstrate prejudice based on the fact that the FCC relied upon the redacted information for its rule. Finally, the FCC offered no reasoned explanation for its dismissal of empirical data and for retaining an extrapolation factor of 40dB per decade for BPL systems. In all other respects, the FCC's findings were not arbitrary.

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