AMERICAN RADIO RELAY LEAGUE, INCORPORATED, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Ambient Corporation, et al., Intervenors.
No. 06-1343
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 23, 2007. Decided April 25, 2008.
227
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.
ROGERS, Circuit Judge:
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
I.
Under
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 re-positioned 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
II.
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
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.
A.
The Commission has long interpreted
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
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.”
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), 443 F.3d 890, 899 (D.C. Cir. 2006) (citation omitted). Construing
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, 657 F.2d 298, 334, 397-98 & n. 484 (D.C. Cir. 1981) (citing cases); see Engine Mfrs. Ass‘n v. EPA, 20 F.3d 1177, 1181-82 (D.C. Cir. 1994).
By requiring the “most critical factual material” used by the agency be subjected to informed comment, the APA provides a procedural device to ensure that agency regulations are tested through exposure to public comment, to afford affected parties an opportunity to present comment and evidence to support their positions, and thereby to enhance the quality of judicial review. 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., 745 F.2d 677, 684 (D.C. Cir. 1984)). Enforcing the APA‘s notice and comment requirements ensures that an agency does not “fail[] to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary” so that “a genuine interchange” occurs
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, 952 F.2d 473, 500 (D.C. Cir. 1991) (quoting Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1031 (D.C. Cir. 1978)); see also Kent County, 963 F.2d at 396; Indep. U.S. Tanker Owners Comm., 690 F.2d at 926; Sierra Club, 657 F.2d at 334, 398.
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, 457 F.3d 31 (D.C. Cir. 2006), but that case is inapposite. In EchoStar, the court held that neither late disclosure of data submitted by a commenter nor non-disclosure of certain staff analysis, in the absence of a timely objection to the completeness of the rulemaking record, violated the notice and comment requirements. Id. at 39-40. The study in that case on which the Commission had relied was made part of the rulemaking record two months before the Commission issued its order upon reconsideration and the non-disclosed staff analysis represented “merely ... cogitations upon the evidence” that was part of the rulemaking record. Id. at 40. By contrast, the challenged orders indicate that the five staff studies were never fully disclosed for comment even though they were, according to the Commission, a central source of data for its critical determinations. See, e.g., Order, 19 F.C.C.R. at 21,266, 21,322, 21,275-76, 21,282, 21,296; Reconsideration Order, 21 F.C.C.R. at 9319, 9324-25.
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, 424 F.2d 935, 939 (D.C. Cir. 1970) (footnote and internal quotation marks omitted). By choosing “to adopt or incorporate by reference” the redacted studies, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161 (1975), and thereby “us[ing]
The narrowness of our holding under
As our colleague notes, see Concurring & Dissenting Op. by Judge Kavanaugh at 245, in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), the Supreme Court has limited the extent that a court may order additional agency procedures, but the procedures invalidated in Vermont Yankee were not anchored to any statutory provision. See id. at 548; Richard J. Pierce, Jr., Waiting for Vermont Yankee III, IV, and V? A Response to Beermann and Lawson, 75 Geo. Wash. L. Rev. 902, 917 (2007). By contrast, the court does not impose any new procedures for the regulatory process, but merely applies settled law to the facts. The Commission made the choice to engage in notice-and-comment rulemaking and to rely on parts of its redacted studies as a basis for the rule. The court, consequently, is not imposing new procedures but enforcing the agency‘s procedural choice by ensuring that it conforms to APA requirements. 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
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, 58 F.3d 1392, 1403 (9th Cir. 1995); see also Mortgage Investors Corp. v. Gober, 220 F.3d 1375, 1380 (Fed. Cir. 2000), and shall make them part of the rulemaking record. In view of the remand, the court does not reach the League‘s contention that the late disclosure of redacted portions of the studies also violated the APA.
C.
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;
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.6 Upon reconsideration, the Commission summarily dismissed this data, stating: “No new information has been submitted that would provide a convincing argument for modifying [the extrapolation factor or emission limit/distance standards] at this time.” Reconsideration Order, 21 F.C.C.R. at 9318. Given the acknowledged critical nature of the extrapolation factor, see Reconsideration Order, 21 F.C.C.R. at 9317 & n. 55, so conclusory a statement cannot substitute for a reasoned explanation, AT & T Corp. v. FCC, 236 F.3d 729, 737 (D.C. Cir. 2001), for it provides neither assurance that the Commission considered the relevant factors nor a discernable path to which the court may defer, see State Farm, 463 U.S. at 42-43. Our colleague‘s philosophical concern cannot fill the void, see Concurring & Dis. Op. at 248.
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, 734 F.2d 1486, 1511 (D.C. Cir. 1984)); see also State Farm, 463 U.S. at 42. Although this obligation extends only to “significant and viable” alternatives, Farmers Union, 734 F.2d at 1511 n. 54, the League‘s proposal was “neither frivolous nor out of bounds,” Chamber of Commerce v. SEC, 412 F.3d 133, 145 (D.C. Cir. 2005), particularly in light of the Commission‘s adoption of certain band exclusions to protect other licensed operators, see Order, 19 F.C.C.R. at 21,287-89. Contrary to the League‘s contention, however, the Commission did not treat it as such.
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, 320 F.3d 228, 258 (D.C. Cir. 2003).
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, 184 F.3d 872, 888 (D.C. Cir. 1999) (citing Allied-Signal, Inc. v. Nuclear Regulatory Comm‘n, 988 F.2d 146, 151 (D.C. Cir. 1993)). On remand, the Commission shall afford a reasonable opportunity for public comment on the unredacted studies on which it relied in promulgating the rule, make the studies part of the rulemaking record, and provide a reasoned explanation of its choice of an extrapolation factor for Access BPL systems.
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, 749 F.2d 788 (D.C. Cir. 1984). There, because the Department of Health and Human Services had improperly failed to supply the court—and the plaintiffs—with the whole administrative record, we remanded the case to the district court. Id. at 790, 793. Following the standard set forth in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“[R]eview is to be based on the full administrative record that was before the Secretary at the time he made his decision.” (emphasis added)), we explained that for a court “to review an agency‘s action fairly, it should have before it neither more nor less information than did the agency when it made its decision.” Boswell Mem‘l, 749 F.2d at 792. Observing that “[s]ome of the documents of which the plaintiffs were apparently unaware [we]re quite critical of the ... study that the [agency] cite[d] as a basis for the [final rule],” id. at 793, we explained that “review[ing] less than the full administrative record might allow a party to withhold evidence unfavorable to its case, and so the APA requires review of ‘the whole record,‘” id. at 792 (quoting
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
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, 801 F.2d 417, 422 (D.C. Cir. 1986) (quoting Ass‘n of Data Processing Serv. Orgs., 745 F.2d 677, 683). Because “[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951), for petitioners to mount a substantial evidence challenge, and for us to resolve it in any meaningful sense, agencies must disclose information that appears to “fairly detract[] from [the] weight” of the evidence, id. The redacted portions of the Commission‘s staff reports fall neatly into that category, meaning that, as petitioner persuasively argues, “[d]isclosure of the complete content of these studies is essential not just for commenters, but also the reviewing court.” Pet‘r‘s Opening Br. 33-34 (emphasis in original). Contrary to the Commission‘s claim that petitioner‘s substantial evidence argument would compel the agency to “make available for public comment every internal document in its entirety that the agency‘s staff prepares relating to a rule making proceeding,” Resp‘ts’ Br. 45, APA section 706 requires disclosure only of staff studies relied upon by the agency and thus contained in the record. Agencies retain discretion to craft staff reports and studies as they see fit, or to exclude such studies from the record altogether simply by declining to rely on them. Under the Commission‘s view, however, an agency could redact from studies on which it expressly relies any evidence that “fairly detracts” from a proposed rule, thereby evading its obligation to account for contrary record evidence. Indeed, in this very case the Commission redacted individual lines from certain pages on which it otherwise relied. Maj. Op. at 237. Faced with selective redactions of this sort, we cannot perform the review function Congress has assigned us.
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, 963 F.2d 391 (D.C. Cir. 1992), for example, we directed the agency to supplement the administrative record with internal agency documents that “relate[d] to the position of the agency‘s own experts on [a] question central to th[e] case.” Id. at 396. “To deny their relevance,” we explained, “would be inconsistent with rational decisionmaking by an administrative agency.” Id. Indeed, in Kent County we ordered the agency to supplement the administrative record even though there was no indication “that the agency [had] purposefully excluded the documents.” 963 F.2d at 396. Here, by contrast, there is little doubt that the Commission deliberately attempted to “exclude[] from the record evidence adverse to its position,” a circumstance in which “this court [has] recognized that supplementing the administrative record might be proper.” Id. (internal quotation marks omitted); see also Natural Resources Def. Council v. Train, 519 F.2d 287, 292 (D.C. Cir. 1975) (remanding to enable plaintiffs “to determine, by limited discovery, whether any other documents which are properly part of the administrative record have been withheld“);
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
For review to go forward on a partial record, we would have to be convinced that the selection of particular portions of the record was the result of mutual agreement between the parties after both sides had fully reviewed the complete record. In that situation, we might naturally assume that the omitted portions did not materially affect either party‘s case and, for our own convenience, review the case on that portion of the record cited by the parties.
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, 486 F.2d 375, 392-93 (D.C. Cir. 1973). In light of our precedents, I concur in the judgment on this point; but I write separately because of concerns about our case law in this area.
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., 463 U.S. 29 (1983). I respectfully dissent from that holding because I believe the FCC sufficiently explained its reasoning.
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.
I
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
Petitioner‘s argument would be unavailing if analyzed solely under the text of
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, 486 F.2d 375, 392-93 (D.C. Cir. 1973); see also Chamber of Commerce v. SEC, 443 F.3d 890, 899 (D.C. Cir. 2006); Connecticut Light & Power Co. v. Nuclear Regulatory Comm‘n, 673 F.2d 525, 530-31 & n. 6 (D.C. Cir. 1982).
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
Because there is “nothing in the bare text of
I do not believe Portland Cement is consistent with the text of the APA or Vermont Yankee. In the wake of Vermont
II
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., 463 U.S. 29 (1983). Although I recognize that the reasoned decisionmaking requirement of State Farm is sometimes more art than science, more Rorschach than rule of law, I do not agree with the majority opinion that the FCC needs to say more in this case.
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, 457 F.3d 1, 8 (D.C. Cir. 2006); Teledesic LLC v. FCC, 275 F.3d 75, 84 (D.C. Cir. 2001); American Iron & Steel Inst. v. EPA, 115 F.3d 979, 1004 (D.C. Cir. 1997); MCI Cellular Tel. Co. v. FCC, 738 F.2d 1322, 1333. In its two orders, the Commission reasonably stated that the evidence submitted by commenters was conflicting, that the new evidence submitted on reconsideration was not sufficiently conclusive to require a change, and that it therefore would continue (for now) to adhere to its longstanding extrapolation factor with respect to broadband-overpower-lines technology. This explanation makes sense. And State Farm does not require a word count; a short explanation can be a reasoned explanation.
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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., 467 U.S. 837, 842-43 & n. 9 (1984) (Chevron “Step 1“); Vermont Yankee, 435 U.S. at 558. But it bears repeating that
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.