American Radio Relay League, Inc. v. FCC

524 F.3d 227 (2008)


P petitions on behalf of licensed amateur radio operators for review of two orders of D promulgating a rule to regulate the use of the radio spectrum by Access Broadband over Power Line (Access BPL) operators. P believed that broadband Internet services could cause interference with its members’ already licensed radio communications. Section 302 of the Communications Act, authorizes D, 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.' D concluded 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. D announced a proposed rule. In the final rule, D defined Access BPL and set technical and administrative requirements to protect licensed radio operators from harmful interference. D concluded that with the rules, the risk of such harmful interference was 'low.' Following issuance of the NOI, P sought disclosure under the Freedom of Information Act ('FOIA') of the Commission's studies related to Access BPL systems. D denied that request except as to one document that it placed in the record in the fall of 2003. When P filed a second FOIA request, D released five studies in redacted form and made them part of the record in December 2004 after the rule was promulgated. D claimed that it had not relied on the redacted portions. P sought reconsideration, and upon its denial, with a clarification, P petitioned for review in that D violated the Administrative Procedure Act (APA) by not making the redacted segments available for public review before finalization of the rule.