## Facts

- The FCC adopted rule amendments governing Access Broadband over Power Line (Access BPL), an unlicensed broadband technology that can emit radio-frequency energy.
- American Radio Relay League, Inc. (ARRL), representing licensed amateur radio operators, challenged the rules as insufficient to prevent harmful interference to licensed radio services.
- In the rulemaking record, the FCC relied on several technical studies addressing BPL interference potential but released versions that contained substantial redactions.
- The FCC’s compliance framework incorporated an “extrapolation factor” for converting measured emissions at specified distances into estimated emissions at other distances, retaining a 40 dB/decade factor for frequencies below 30 MHz.
- Commenters submitted empirical data and arguments suggesting a smaller factor (e.g., 20 dB/decade) would better reflect real-world BPL emissions and potential interference.
- ARRL petitioned for review under the Communications Act and the Administrative Procedure Act (APA), seeking judicial review of the FCC’s rulemaking orders amending Part 15.

## Issues

1. Whether the FCC violated APA notice-and-comment requirements by relying on technical studies while withholding critical portions through redactions during the comment period.
2. Whether the FCC acted arbitrarily and capriciously by failing to provide a reasoned explanation for selecting a 40 dB/decade extrapolation factor in light of record evidence.
3. Whether the FCC’s Access BPL rules unlawfully weakened established protections for licensed services against harmful interference from unlicensed devices.

## Decision

- The D.C. Circuit granted the petition in part and remanded to the FCC.
- The court held the FCC violated APA notice-and-comment requirements by redacting studies on which it relied, depriving the public of access to critical factual material needed for meaningful comment.
- The court held the FCC failed to provide a reasoned, record-based explanation for its choice of the 40 dB/decade extrapolation factor and therefore acted arbitrarily and capriciously on that point.
- The court did not vacate the Access BPL rules, instead remanding for the FCC to cure the procedural and explanatory defects.
- The court declined to invalidate the rules on the broader theory that the FCC had categorically abandoned longstanding interference protections for licensed services.

## Legal Principles

- An agency that relies on technical studies in rulemaking must disclose the critical factual material underlying its position in time to permit meaningful public comment; withholding such material violates APA notice-and-comment requirements.
- Material characterized as “internal” may still require disclosure if it contains substantive technical analysis or factual content on which the agency relies.
- Under APA arbitrary-and-capricious review, an agency must examine relevant data and articulate a satisfactory explanation connecting the facts found to the choices made.
- When record evidence materially challenges a technical parameter embedded in a rule, the agency must respond with a reasoned explanation or revise the parameter; failure to do so warrants remand.
- Remand without vacatur is appropriate where identified deficiencies can be addressed through further agency proceedings without necessarily setting aside the entire rule.

## Conclusion

The D.C. Circuit remanded the FCC’s Access BPL rules because the FCC relied on partially withheld technical studies in violation of APA notice-and-comment requirements and did not adequately justify its emissions extrapolation factor choice, while leaving the rules in place pending the FCC’s corrective action on remand.


Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008)