American Radio Relay League, Inc. v. Federal Communications Commission
524 F.3d 227 (2008)
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Rule of Law:
An agency violates the notice-and-comment requirements of the Administrative Procedure Act (APA) when it withholds portions of technical studies upon which it relies in a rulemaking, as this prevents meaningful public participation. Additionally, an agency's action is arbitrary and capricious under the APA if it fails to provide a reasoned explanation for its choice of a technical standard, particularly when dismissing contrary empirical evidence.
Facts:
- Access Broadband over Power Line (Access BPL) is a technology that transmits high-speed internet data over electric power lines using radio frequency energy.
- The radio spectrum used by Access BPL, from 1.7-80 MHz, is also used by licensed operators, including amateur radio operators represented by the American Radio Relay League, Inc. (the League), creating a potential for harmful interference.
- In the process of developing regulations for Access BPL, the Federal Communications Commission (FCC) conducted its own internal field tests and scientific studies to evaluate the technology's interference potential.
- The FCC expressly stated that it relied on these internal studies to conclude that the risk of harmful interference from Access BPL was low and manageable.
- A key technical standard for measuring potential interference is the 'extrapolation factor,' which predicts how rapidly a radio signal's strength decays over distance.
- The FCC's pre-existing rule for devices operating below 30 MHz used an extrapolation factor of 40 decibels (dB) per decade.
- During the rulemaking process, the League and others submitted empirical data, including studies from the United Kingdom, suggesting that a lower 20 dB per decade factor was more appropriate for the new Access BPL technology.
Procedural Posture:
- The Federal Communications Commission (FCC) issued a Notice of Inquiry and later a Notice of Proposed Rule Making to regulate Access BPL systems.
- The FCC promulgated a final rule establishing technical and administrative requirements for Access BPL.
- The American Radio Relay League (the League) filed Freedom of Information Act (FOIA) requests for the FCC's internal studies on Access BPL.
- After promulgating the rule, the FCC released five of its internal studies into the rulemaking record in redacted form.
- The League petitioned the FCC for reconsideration of the final rule.
- The FCC issued an order on reconsideration, denying the League's petition but offering a minor clarification.
- The League (petitioner) petitioned the U.S. Court of Appeals for the D.C. Circuit for review of the FCC's orders.
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Issue:
Does the Federal Communications Commission's rule regulating Access Broadband over Power Line (Access BPL) systems violate the Administrative Procedure Act where the agency redacted portions of technical studies it relied upon and failed to provide a reasoned explanation for its choice of a key technical standard?
Opinions:
Majority - Rogers
Yes. The Federal Communications Commission's rule violates the Administrative Procedure Act because the agency failed to provide adequate notice and comment by redacting studies it relied on, and its decision to retain the existing extrapolation factor was arbitrary and capricious due to a lack of reasoned explanation. The APA requires an agency to make available the 'technical studies and data' on which it relies, and redacting portions of these studies prevents the meaningful public criticism necessary for a 'genuine interchange.' The agency's failure to provide a reasoned explanation for retaining the 40 dB extrapolation factor, especially its conclusory dismissal of contrary empirical evidence, did not demonstrate a 'rational connection between the facts found and the choice made' and was therefore arbitrary and capricious.
Concurring - Tatel
Yes. The FCC's failure to disclose the unredacted studies prevents the court from fulfilling its judicial review function under the APA. The APA requires the court to review the 'whole record,' which includes the complete content of the staff reports the Commission relied upon. By redacting portions that might 'fairly detract' from its ultimate decision, the FCC has improperly withheld unfavorable evidence, making it impossible for the court to conduct a meaningful arbitrary and capricious review.
Concurring in part, concurring in the judgment in part, and dissenting in part - Kavanaugh
Yes, in part. On the notice-and-comment issue, existing circuit precedent requires the disclosure of the full studies, so I concur in the judgment to remand. However, this precedent stands on a 'shaky legal foundation' and is inconsistent with the Supreme Court's holding in Vermont Yankee, which forbids courts from imposing procedural requirements on agencies beyond the text of the APA. On the extrapolation factor issue, I dissent because the FCC provided a sufficient explanation for a highly technical determination amid conflicting data. The Commission reasonably decided to adhere to its existing standard while acknowledging uncertainty, and the court's demand for more explanation improperly exceeds the narrow scope of arbitrary-and-capricious review.
Analysis:
This decision reinforces a crucial procedural safeguard in administrative law, confirming that an agency cannot cherry-pick the data it discloses from studies it relies upon during notice-and-comment rulemaking. It solidifies the principle that to allow for meaningful public participation and judicial review, the 'whole record' must be accessible, including potentially unfavorable analyses within relied-upon documents. The case also highlights an ongoing jurisprudential debate, articulated in Judge Kavanaugh's opinion, concerning the extent to which courts have created common-law procedural requirements that go beyond the APA's text, potentially conflicting with the Supreme Court's directive in Vermont Yankee.
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