American Radio Relay League, Inc. v. Federal Communications Commission

United States Court of Appeals for the District of Columbia Circuit · 2008 · Administrative Law

Administrative LawAPAnotice and commenttechnical studiesrulemaking recordarbitrary and capricious reviewreasoned explanationFCC

Facts

The FCC adopted a rule regulating Access BPL systems, concluding that existing safeguards plus new protective measures would keep harmful interference to licensed radio operators low and manageable. The rule imposed certification, emission limits, a database, and requirements that operators be able to notch power, avoid or adjust frequencies, and shut down segments when necessary. In support of the rule, the FCC relied in part on five staff studies based on field tests, but it released those studies only in redacted form and did so after promulgating the rule. The FCC also retained a preexisting extrapolation factor of 40 dB per decade for measuring emissions below 30 MHz, despite record criticism and empirical studies suggesting a lower factor might be more appropriate for Access BPL.

Issue

Whether the FCC lawfully promulgated the Access BPL rule when it relied on partially redacted staff studies not fully disclosed for notice and comment, retained a 40 dB-per-decade extrapolation factor without adequate explanation, and allegedly departed from prior Communications Act precedent or inadequately considered an alternative frequency-band restriction.

Rule

When an agency relies on technical studies, data, or staff reports in notice-and-comment rulemaking, the APA requires those relied-upon materials to be made available in time for meaningful public comment; an agency may not selectively disclose only favorable portions of studies on which it relies. In addition, even in highly technical rulemakings, the agency must provide a reasoned explanation for key policy or methodological choices and must grapple with significant contrary evidence. An agency also must consider significant and viable alternatives and give a reasoned explanation for rejecting them.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Federal Transit Safety Board proposes a rule setting vibration limits for battery-powered commuter buses operating in Phoenix and Tucson. In the final rule, the Board says it relied in part on three staff field-test reports, but during the comment period it released only the numerical charts while redacting the sections discussing test methodology, limitations, and cautionary conclusions.

If a bus manufacturer challenges the rule under the APA, which is the strongest argument?

Explanation. When an agency relies on technical studies or staff reports in notice-and-comment rulemaking, the relied-upon material must be disclosed in time for meaningful public comment. The problem is not limited to withholding raw data; withholding methodological analysis, limitations, and conclusions that are inextricably bound up with the relied-on studies also violates the APA. The case rejects selective disclosure of only favorable portions. (Derived from American Radio Relay League, Inc. v. Federal Communications Commission (2008).)