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

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 23, 2007 Decided April 25, 2008

No. 06-1343

AMERICAN RADIO RELAY LEAGUE, INCORPORATED,
PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS

AMBIENT CORPORATION, ET AL.,
INTERVENORS

On Petition for Review of Orders of the
Federal Communications Commission

Jonathan J. Frankel argued the cause for petitioner. With
him on the briefs were Christopher D. Imlay, William T. Lake,
Dileep S. Srihari, and Daniel A. Zibel.

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,
 2

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 from Access BPL radio emissions. The League
challenges this conclusion, contending that the Commission has
abandoned decades of precedent requiring shut-down and other
protections for licensees and that the rule is substantively and
procedurally flawed. We grant the petition in part and remand
the rule to the Commission. The Commission failed to satisfy
the notice and comment requirements of the Administrative
Procedure Act (“APA”) by redacting studies on which it relied
in promulgating the rule and failed to provide a reasoned
explanation for its choice of the extrapolation factor for
 3

measuring Access BPL emissions.

I.

Under section 301 of the Communications Act, the owners
and operators of “any apparatus for the transmission of energy
or communications or signals by radio” are required to obtain a
license as a condition of operation and they may not use or
operate any such apparatus, for instance, “when interference is
caused by such use or operation with the transmission of such
energy, communications, or signals.” 47 U.S.C. § 301. Section
302 of the Act authorizes the Commission, “consistent with the
public interest, convenience, and necessity,” 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.” Id. § 302a(a).
The Commission’s rules, specifically Part 15, define “harmful
interference” as “[a]ny emission, radiation or induction that
endangers the functioning of a radio navigation service or of
other safety services or seriously degrades, obstructs or
repeatedly interrupts a radiocommunications service.” 47
C.F.R. § 15.3(m). The rules governing unlicensed devices also
include two provisions to protect licensed radio operators from
unlicensed devices: an ex ante precondition of operation that a
device not cause “harmful interference,” id. § 15.5(b), and an ex
post requirement that a device “cease” operation if “harmful
interference” occurs, id. § 15.5(c).

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
 4

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).

In the final rule the Commission defined Access BPL and
set technical and administrative requirements to protect licensed
radio operators from harmful interference. See Amendment of
Part 15 Regarding New Requirements and Measurement
Guidelines for Access Broadband Over Power Line Systems,
Carrier Current Systems (“Order”), 19 F.C.C.R. 21,265, 21,284-
302 (Oct. 28, 2004). To protect licensed operators, the rule
requires Access BPL manufacturers and operators to comply
with certification requirements and emission limits, and
establishes a nationwide database of Access BPL operations in
order to facilitate identification of a source of interference and
its resolution. Id. at 21,282, 21,300, 21,316. Access BPL
operations also must have the capability, from a central location,
to reduce or “notch” operating power, to avoid or adjust
frequencies, and to shut down segments of their operations
 5

entirely when necessary to resolve licensees’ complaints of
“harmful interference.” Id. at 21,291-96. To protect
government, aeronautical, and public safety operations, Access
BPL operators must avoid certain frequencies and certain
geographic areas, notify and consult with public safety users
before beginning operations, and resolve public safety users’
complaints of harmful interference within 24 hours. Id. at
21,287-89, 21,301-02. The Commission retained the existing
extrapolation factor of 40 decibels (“dB”) per decade1 for
frequencies below 30 MHz to measure Access BPL emissions
and any resulting interference. Id. at 21,309-12.

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.

1
Decibels per decade are used to measure the extrapolation
factor. A “decade,” which is a “10:1 range, refers to the ratio of the
specified measurement distance to the actual measurement distance.”
Order, 19 F.C.C.R. at 21,303 n.181.
 6

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 form and made
them part of the record in December 2004 after the rule was
promulgated. The Commission stated that “[t]hese documents
comprise internally-generated information upon which the
Commission relied, in part, in reaching its determination.”
Submission by FCC Ofc. of Eng’g & Tech. to Sec’y (Dec. 22,
2004), filed in ET Docket Nos. 03-104 & 04-37.

The League sought reconsideration, and upon its denial,
with a clarification,2 the League petitioned for review.

2
Amendment of Part 15 Regarding New Requirements and
Measurement Guidelines for Access Broadband Over Power Line
Systems, Carrier Current Systems (“Reconsideration Order”), 21
F.C.C.R. 9308 (Aug. 7, 2006). In responding to a request for
clarification, the Commission added sub-section (iii) to 47 C.F.R. §
15.611(c)(1), providing that:

[W]e will not require [an Access BPL operator who has
followed the 20 dB “notch” procedure] to take further actions
to resolve complaints of harmful interference to mobile
operations.
 7

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
section 302 of the Act to authorize the operation of unlicensed
devices that could interfere with licensed devices, and by no
longer requiring them to cease operation if they actually cause
harmful interference. Second, because “[t]he lynchpin” of the
rule “is a series of studies conducted by the [Commission’s]
engineers” that have never been made available in unredacted
form, their non-disclosure violates the APA’s notice and
comment requirements. Pet.’s Br. at 18. Third, the rule is based
on a flawed assumption that Access BPL emissions under 30
MHz decay by 40 dB per decade; consequently, use of this
extrapolation factor to measure Access BPL emissions is
arbitrary and capricious given the absence of any evidentiary
basis in the rulemaking record and the Commission’s refusals to
consider empirical evidence supporting a lower extrapolation
factor of 20 dB per decade or an alternative sliding-scale
formula. Fourth, the Commission failed to consider adequately
a proposal to limit Access BPL systems to the frequency band
between 30 and 50 MHz, as a “workable” way to ensure that
they do not cause harmful interference in those frequencies
“uniquely well-suited to licensed long-distance communications
such as . . . amateur radio.” Id. at 43-44. The Commission
rejects all of these contentions.

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. 5 U.S.C. § 706(2); see 28
U.S.C. § 2342(1); 47 U.S.C. § 402. An agency need only

Reconsideration Order, 21 F.C.C.R. at 9320, 9338 app. B.
 8

articulate a “rational connection between the facts found and the
choice made,” Motor Vehicle Mfrs. Ass’n of the United States,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(citation omitted), and the court “will not intervene unless the
Commission failed to consider relevant factors or made a
manifest error in judgment,” Consumer Elecs. Ass’n v. FCC, 347
F.3d 291, 300 (D.C. Cir. 2003). Where a “highly technical
question” is involved, “courts necessarily must show
considerable deference to an agency’s expertise.” MCI Cellular
Tel. Co. v. FCC, 738 F.2d 1322, 1333 (D.C. Cir. 1984). At least
“a modicum of reasoned analysis” is required, however.
Hispanic Info. & Telecomms. Network, Inc. v. FCC, 865 F.2d
1289, 1297-98 (D.C. Cir. 1989). The court defers to an agency’s
reasonable interpretation of its governing statute consistent with
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-45 (1984). An agency’s interpretation
of its own regulation is “‘controlling’ unless ‘plainly erroneous
or inconsistent with’ the regulation[] being interpreted.” Long
Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339, 2349 (2007)
(quotation marks and citations omitted); see Udall v. Tallman,
292 U.S. 1, 16-17 (1965); Cassell v. FCC, 154 F.3d 478, 483
(D.C. Cir. 1998).

A.
The Commission has long interpreted section 301 of the Act
to allow the unlicensed operation of a device that emits radio
frequency energy as long as it does not “transmit[] enough
energy to have a significant potential for causing harmful
interference” to licensed radio operators. Revision of Part 15 of
the Commission’s Rules Regarding Ultra-Wideband
Transmission Systems, 19 F.C.C.R. 24,558, 24,589 & n.179
(2004) (“Ultra-Wideband Order”); see Revision of Part 15 of
the Rules, 4 F.C.C.R. 3493, 3493 (1989); Part 15 Incidental and
Restricted Radiation Devices, 20 Fed. Reg. 10,055, 10,056 (Dec.
29, 1955). The League contends that in promulgating the rule
 9

the Commission has departed from its longstanding
interpretation of section 301 as including an ex post shut-down
requirement where harmful interference occurs “by forcing
licensed users to accept harmful interference from unlicensed
operations and permitting unlicensed [Access] BPL operators to
continue their interference-generating activities.” Pet.’s Br. at
21. The League does not dispute that an agency may change its
position and depart from its precedent. See Action for
Children’s Television v. FCC, 821 F.2d 741, 745 (D.C. Cir.
1987) (citing Greater Boston Television Corp. v. FCC, 444 F.2d
841, 852 (D.C. Cir. 1970); State Farm, 463 U.S. at 42-43).
Rather, the League contends that the Commission has done so
without acknowledging the change or providing a reasoned
explanation for it. This contention is not well taken.

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
 10

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 interference in a new context without
modifying its shut-down policy. Cf. Cassell, 154 F.3d at 483.
The Commission implicitly determined that any interference that
may occur beyond the required “notch” will not “seriously
degrade[], obstruct[] or repeatedly interrupt[]” mobile radio
under the Part 15 definition of “harmful interference.” Order,
19 F.C.C.R. at 21,276 & n.51; Reconsideration Order, 21
F.C.C.R. at 9323 & n.89. Because the Commission determined
that any Access BPL interference will never reach a harmful
level of interference for mobile use, the shut-down rule simply
will not be triggered for mobile operations. See Reconsideration
Order, 21 F.C.C.R. at 9320. The clarification upon
3
reconsideration is to the same effect. Not requiring an Access
BPL operator to shut down unless harmful interference occurs
reflects Commission precedent. See Order, 19 F.C.C.R. at
21,296; Reconsideration Order, 21 F.C.C.R. at 9316; see also
Ultra-Wideband Order, 19 F.C.C.R. at 24,591. The League
concedes that Commission precedent does not require the
elimination of all interference at all times and all places for
section 301’s license requirement not to apply. See Pet.’s Reply
Br. at 4. Contrary to the League’s suggestion, then, the
Commission’s observation that mobile users could move, Order,
21 F.C.C.R. at 21,294, did not impose a new burden on mobile
operators but simply recognized the nature of mobile use, see

3
Although the League did not seek further reconsideration as
Commission rules allow, see 47 C.F.R. § 1.429(i), the Commission
was previously alerted to the League’s concern about preserving shut-
down protection and has not contested the League’s ability to raise this
issue. Cf. Qwest Corp. v. FCC, 482 F.3d 471, 474 (D.C. Cir. 2007)
(citing 47 U.S.C. § 405(a)).
 11

Reconsideration Order, 21 F.C.C.R. at 9318, 9320.

The League’s related contention that the Commission has
departed from its precedent in interpreting the relationship
between section 301 and section 302 of the Act fares no better.
The Commission stated in responding to the League’s petition
for reconsideration that because Access BPL systems are
“capable of emitting [radio frequency] energy that can cause
harmful interference to radio communications,” they “fall under
the Commission’s jurisdiction as conferred by Section 302 of
the Communications Act, rather than Section 301.” Id. at 9327-
28. The League misconstrues this statement to mean that the
Commission is no longer regulating Access BPL under section
301.4 The League had argued that the Commission could not
rely on section 302 and that there was no basis for a balancing
test regarding harmful interference under section 301. See id. at
9327. The Commission’s response, however, does not suggest
either that Access BPL devices are not governed by section 301
at all or that the Commission is not invoking its authority under
both sections in promulgating the rule. See id. at 9335; Order,
19 F.C.C.R. at 21,321. As the Commission offers, the statement
appears to be a shorthand way of saying that the Commission
has applied section 302’s public interest standard to regulate
Access BPL systems, as it has done in the past, because they
operate in accordance with Part 15 rules rather than triggering
the section 301 license requirement. Resp.’s Br. at 39; see
Order, 19 F.C.C.R. at 21,275, 21,283; see also Amendment of
Part 15 of the Commission’s Rules to Allow Certification of
Equipment, 16 F.C.C.R. 22,337, 22,341-42 (2001).

B.

4
Although the League did not seek further reconsideration of
this issue, we address it in view of its inclusion in the League’s
petition for reconsideration. See supra note 3.
 12

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.” 5 U.S.C. § 553(b)-(c).
Longstanding precedent instructs that “[n]otice is sufficient ‘if
it affords interested parties a reasonable opportunity to
participate in the rulemaking process,’ and if the parties have not
been ‘deprived of the opportunity to present relevant
information by lack of notice that the issue was there.’” WJG
Tel Co., Inc. v. FCC, 675 F.2d 386, 389 (D.C. Cir. 1982)
(citations omitted); see Fla. Power & Light Co. v. Nuclear
Regulatory Comm’n, 846 F.2d 765, 771 (D.C. Cir. 1988).

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 section 553 of the APA, the court
explained long ago that “[i]n order to allow for useful criticism,
it is especially important for the agency to identify and make
available technical studies and data that it has employed in
reaching the decisions to propose particular rules.” Conn. Light
& Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 525, 530
(D.C. Cir. 1982) (emphasis added). More particularly,
“[d]isclosure of staff reports allows the parties to focus on the
 13

information relied on by the agency and to point out where that
information is erroneous or where the agency may be drawing
improper conclusions from it.” Nat’l Ass’n of Regulatory Util.
Comm’rs (“NARUC”) v. FCC, 737 F.2d 1095, 1121 (D.C. Cir.
1984) (emphasis added); see Portland Cement Ass’n v.
Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973); see also Kent
County, Del. Levy Court v. EPA, 963 F.2d 391, 395-96 (D.C.
Cir. 1992); Indep. U.S. Tanker Owners Comm. v. Lewis, 690
F.2d 908, 926 (D.C. Cir. 1982).

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 rather than
“allow[ing] an agency to play hunt the peanut with technical
information, hiding or disguising the information that it
 14

employs.” Conn. Light & Power Co., 673 F.2d at 530-31. The
failure to disclose for public comment is subject, however, to
“the rule of prejudicial error,” 5 U.S.C. § 706, and the court will
not set aside a rule absent a showing by the petitioners “that they
suffered prejudice from the agency’s failure to provide an
opportunity for public comment,” Gerber v. Norton, 294 F.3d
173, 182 (D.C. Cir. 2002), in sufficient time so that the agency’s
“decisions . . . [may be] framed with . . . comment in full view,”
NARUC, 737 F.2d at 1121.

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
 15

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
unredacted studies, Chamber of Commerce II, 443 F.3d at 905,
that may allow it to “mount a credible challenge” if given the
opportunity to comment, Gerber, 294 F.3d at 184 (citation
omitted); see Owner-Operator Indep. Drivers Ass’n, Inc. v. Fed.
Motor Carrier Safety Admin., 494 F.3d 188, 202-03 (D.C. Cir.
2007). As suggested by the League, the partially redacted pages
indicate that a study’s core scientific recommendations may
reveal the limitations of its own data and that its conclusions
 16

may reveal methodology or illuminate strengths and weaknesses
of certain data or the study as a whole. For example, the League
points to the unredacted headings of otherwise redacted pages
referring to “New Information Arguing for Caution on HF BPL”
and “BPL Spectrum Tradeoffs,” subjects on which it seeks the
opportunity to comment. FCC Lab., BPL Summary After
Briarcliff Manor, NY Test, Sept. 8, 2004, at 17, filed in ET
Docket Nos. 03-104 & 04-37. The unredacted pages thus appear
to “contain information in tension with the [Commission’s]
conclusion” that “[Access] BPL’s acknowledged interference
risks are ‘manageable.’” Pet.’s Br. at 18 (quoting Order, 19
F.C.C.R. at 21,276). Allowing such “omissions in data and
methodology” may “ma[ke] it impossible to reproduce” an
agency’s results or assess its reliance upon them. City of
Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153, 1168 (D.C.
Cir. 1987); see also Sierra Club, 657 F.2d at 334, 397-98;
United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240,
252 (2d Cir. 1977).

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
 17

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] . . . [them] in its dealings with the public,” Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980), the Commission ceased treating them as internal
working papers. The Commission’s reliance on Vernal
Enterprises, Inc. v. FCC, 355 F.3d 650, 661 (D.C. Cir. 2004),
for the proposition that an agency is not bound by the actions of
its staff, is misplaced; unlike the refund rulings in that case, the
redacted studies were neither unauthorized staff activities nor
binding on the Commission.

The narrowness of our holding under section 553 of the
APA is manifest. The redacted studies consist of staff-prepared
scientific data that the Commission’s partial reliance made
“critical factual material.” Owner-Operator Indep. Drivers
Ass’n, 494 F.3d at 201 (quoting Air Transp. Ass’n of Am. v.
 18

FAA, 169 F.3d 1, 7 (D.C. Cir. 1999)). The Commission has
chosen to rely on the data in those studies and to place the
redacted studies in the rulemaking record. Individual pages
relied upon by the Commission reveal that the unredacted
portions are likely to contain evidence that could call into
question the Commission’s decision to promulgate the rule.
Under the circumstances, the Commission can point to no
authority allowing it to rely on the studies in a rulemaking but
hide from the public parts of the studies that may contain
contrary evidence, inconvenient qualifications, or relevant
explanations of the methodology employed. The Commission
has not suggested that any other confidentiality considerations
would be implicated were the unredacted studies made public
for notice and comment. The Commission also has not
suggested that the redacted portions of the studies contain only
“supplementary information” merely “clarify[ing], expand[ing],
or amend[ing] other data that has been offered for comment.”
See Chamber of Commerce II, 443 F.3d at 903. Of course, it is
within the Commission’s prerogative to credit only certain parts
of the studies. But what it did here was redact parts of those
studies that are inextricably bound to the studies as a whole and
thus to the data upon which the Commission has stated it relied,
parts that explain the otherwise unidentified methodology
underlying data cited by the Commission for its conclusions, and
parts that signal caution about that data. This is a critical
distinction and no precedent sanctions such a “hide and seek”
application of the APA’s notice and comment requirements. See
Gerber, 294 F.3d at 181 (quoting MCI Telecomms. Corp. v.
FCC, 57 F.3d 1136, 1142 (D.C. Cir. 1995)).

As our colleague notes, see Concurring & Dissenting Op.
by Judge Kavanaugh at 3, in Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, 435 U.S. 519
(1978), the Supreme Court has limited the extent that a court
may order additional agency procedures, but the procedures
 19

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
certain parts. It is quite another thing to provide notice and an
opportunity for comment on only those parts of the studies that
the Commission likes best. Moreover, the court’s precedent
construing section 553 to require agencies to release for
comment the “technical studies and data” or “staff reports” on
which they rely during a rulemaking, see, e.g., Conn. Light &
Power Co., 673 F.2d at 530; NARUC, 737 F.2d at 1121, is not
inconsistent with the view that “the Portland Cement doctrine
should be limited to studies on which the agency actually relies
to support its final rule.” 1 RICHARD J. PIERCE, JR.,
ADMINISTRATIVE LAW TREATISE 437 (4th ed. 2002) (emphasis
added).

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
 20

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; 47
C.F.R. § 15.31(f). The Commission’s Part 15 rules,
§ 15.31(f)(2), include a generally applicable extrapolation factor
of 40 dB per decade for any device that may have potential to
interfere with licensed operators at frequencies below 30 MHz.
The Commission acknowledged that the extrapolation factor “is
an important consideration in determining compliance with the
emission limits in the rules” because “[i]f the extrapolation
factor is 20 dB per decade instead of 40 dB per decade, the
correction factor would be smaller, thus resulting in higher value
for the transmitted emission levels [of Access BPL devices].”
Reconsideration Order, 21 F.C.C.R. at 9317 & n.55; see Order,
19 F.C.C.R. at 21,316. Nonetheless, the gaps in the
Commission’s explanation for applying the pre-existing
extrapolation factor to Access BPL systems demonstrate its
inadequacy. Cf. Hispanic Info. & Telecomms. Network, Inc.,
865 F.2d at 1297-98.
 21

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, 21 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 pre-
existing extrapolation factor rather than suggesting that factor
was appropriate for the new technology of Access BPL.5 The
Commission also relied on the NTIA’s latest computer modeling
results, but these results were not part of the rulemaking record.
See Order, 19 F.C.C.R. at 21,310. Although indicating that it
was confronted with a “lack of conclusive experimental data
pending large scale Access BPL deployments,” Order, 19
F.C.C.R. at 21,310; Reconsideration Order, 21 F.C.C.R. at
9318, the Commission provided no explanation of how this
circumstance justified retaining for Access BPL an extrapolation
factor that was designed to accommodate technologies different
in scale, signal power, and frequencies used. See NOI, 18
F.C.C.R. at 8498, 8501; Order, 19 F.C.C.R. at 21,266.

5
See NTIA, POTENTIAL INTERFERENCE FROM BROADBAND
OVER POWER LINE (BPL) SYSTEMS TO FEDERAL GOVERNMENT
RADIOCOMMUNICATIONS AT 1.7 - 80 MHZ, PHASE 1 STUDY 7-1 (Apr.
27, 2004), filed in ET Docket Nos. 03-104 & 04-37 (stating that
“sources of potential [Access BPL] measurement inaccuracies
include: the measurement distance and extrapolation factor”); id. at
7-5 (stating that “[Access] BPL field strength does not decrease with
increasing distance consistent with the existing Part 15 distance
extrapolation factor[] of . . . 40 dB per decade . . . below 30 MHz”).
 22

Promulgated in 1989, the regulation states that for frequencies
below 30 MHz the factor applies “[p]ending the development of
an appropriate measurement procedure,” 47 C.F.R.
§ 15.31(f)(2), and the Commission acknowledged that “[t]he
actual extrapolation factor can be determined empirically” for
carrier current systems, NOI, 18 F.C.C.R. at 8508.

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 7-8.

6
See OFFICE OF COMMUNICATIONS (OFCOM), AMPERION PLT
MEASUREMENTS IN CRIEFF (May 11, 2005); OFCOM, ASCOM PLT
MEASUREMENTS IN WINCHESTER (May 11, 2005); OFCOM, DS2 PLT
MEASUREMENTS IN CRIEFF (May 11, 2005), all filed in ET Docket
Nos. 03-104 & 04-37.
 23

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.

D.
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
 24

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
 25

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
court in Part IIB is particularly important because the
Commission’s failure to turn over the unredacted studies
undermines this court’s ability to perform the review function
APA section 706 demands. That provision requires us to set
aside arbitrary and capricious agency action after reviewing
“the whole record,” 5 U.S.C. § 706, and the “whole record” in
this case includes the complete content of the staff reports the
Commission relied upon in promulgating the challenged rule.

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 (citing 5 U.S.C. §
706).

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
 2
proposition unaffected by the Commission’s claim that it
chose not to rely on various parts of the studies. See 28
U.S.C. § 2112(b) (“The record to be filed in the court of
appeals . . . shall consist of the order sought to be reviewed or
enforced, the findings or report upon which it is based, and
the pleadings, evidence, and proceedings before the agency
. . . concerned.” (emphasis added)); FED. R. APP. P. 16 (“The
record on review or enforcement of an agency order consists
of . . . any findings or report on which it is based.” (emphasis
added)). Nor is there any doubt that, as our case law makes
clear, the APA means exactly what it says: an agency must
make the “whole record” available, especially where, as here,
the undisclosed portions might very well undercut the
agency’s ultimate decision, see Maj. Op. at 14-16.

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. v. Bd. of
Governors of the Fed. Reserve Sys., 745 F.2d 677, 683 (D.C.
Cir. 1984)). 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
 3
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 14. 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
 4
[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”); 28 U.S.C. § 2112(b) (“If there is
omitted from the record any portion of the proceedings before
the agency . . . which the court subsequently determines to be
proper for it to consider to enable it to review or enforce the
order in question[,] the court may direct that such additional
portion of the proceedings be filed as a supplement to the
record.”).

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 5 U.S.C. § 706). Acknowledging
that such an approach would sometimes be “fundamentally
unfair,” id., however, we carefully circumscribed this
possibility:

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.
 5
Id.; see also 28 U.S.C. § 2112(b) (allowing review of partial
record if all parties agree). Because the plaintiffs in Boswell
Memorial were left in the dark about several documents that
the agency later submitted in related cases, we refused to base
our review on what we considered an incomplete record.
Such an approach would have been unfair, we explained,
because with “no check upon the failure of the agency to
disclose information adverse to it, the normal pressures
towards inclusion of all relevant material in the record before
the court [we]re absent.” Id. Because here, as in Boswell
Memorial, “review[ing] less than the full administrative
record might allow a party to withhold evidence unfavorable
to its case,” id. at 792, I agree that the appropriate course is to
remand the case with an order to disclose the entire studies on
which the Commission relied—warts and all.
 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.
 2
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 § 553 of the APA, petitioner says the FCC
must release the redacted portions of the staff studies so that
interested parties can comment on them and so the FCC, in
turn, can consider those comments.

Petitioner’s argument would be unavailing if analyzed
solely under the text of APA § 553. The APA requires only
that an agency provide public notice and a comment period
before the agency issues a rule. See 5 U.S.C. § 553. The
notice must include “the terms or substance of the proposed
rule or a description of the subjects and issues involved.”
§ 553(b)(3) (emphasis added). After issuing a notice and
allowing time for interested persons to comment, the agency
must issue a “concise general statement” of the rule’s “basis
and purpose” along with the final rule. § 553(c). One
searches the text of APA § 553 in vain for a requirement that
an agency disclose other agency information as part of the
notice or later in the rulemaking process.

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
 3
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
§ 553 of the APA. And Portland Cement’s lack of roots in
the statutory text creates a serious jurisprudential problem
because the Supreme Court later rejected this kind of free-
form interpretation of the APA. In its landmark Vermont
Yankee decision, which came a few years after Portland
Cement, the Supreme Court forcefully stated that the text of
the APA binds courts: Section 553 of the APA “established
the maximum procedural requirements which Congress was
willing to have the courts impose upon agencies in conducting
rulemaking procedures.” Vermont Yankee Nuclear Power
Corp. v. National Res. Def. Council, Inc., 435 U.S. 519, 524
(1978) (emphasis added); see also Antonin Scalia, Vermont
Yankee: The APA, the D.C. Circuit, and the Supreme Court,
1978 SUP. CT. REV. 345, 395-96 (Vermont Yankee was “a
major watershed. It has put to rest the notion that the courts
have a continuing ‘common-law’ authority to impose
 4
procedures not required by the Constitution in the areas
covered by the APA.”).

Because there is “nothing in the bare text of § 553 that
could remotely give rise” to the Portland Cement
requirement, some commentators argue that Portland Cement
is “a violation of the basic principle of Vermont Yankee that
Congress and the agencies, but not the courts, have the power
to decide on proper agency procedures.” Jack M. Beermann
& Gary Lawson, Reprocessing Vermont Yankee, 75 GEO.
WASH. L. REV. 856, 894 (2007). At the very least, others say,
the Supreme Court’s decision in Vermont Yankee raises “a
question concerning the continuing vitality of the Portland
Cement requirement that an agency provide public notice of
the data on which it proposes to rely in a rulemaking.”
1 RICHARD J. PIERCE, ADMINISTRATIVE LAW TREATISE § 7.3,
at 435 (4th ed. 2002).

I do not believe Portland Cement is consistent with the
text of the APA or Vermont Yankee. In the wake of Vermont
Yankee, however, this Court has repeatedly continued to apply
Portland Cement (albeit without analyzing the tension
between Vermont Yankee and Portland Cement). In these
circumstances, this three-judge panel must accept Portland
Cement as binding precedent and must require the FCC to
disclose the redacted portions of its staff studies. I therefore
concur in the judgment as to Part IIB of the majority opinion.

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.
 5
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
 6
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.

Section 706 provides that courts set aside agency rules
that are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Arbitrary-and-capricious review under § 706 is “narrow,” and
“a court is not to substitute its judgment for that of the
agency.” State Farm, 463 U.S. at 43. A reviewing court
“may not set aside an agency rule that is rational, based on
consideration of the relevant factors, and within the scope of
the authority delegated to the agency by the statute.” Id. at
42. We thus must ‘“uphold a decision of less than ideal
clarity if the agency’s path may reasonably be discerned.”’
Id. at 43 (quoting Bowman Transp. Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974)).

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 (D.C. Cir. 1984). In its
 7
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 long-
standing extrapolation factor with respect to broadband-over-
power-lines technology. This explanation makes sense. And
State Farm does not require a word count; a short explanation
can be a reasoned explanation.

***

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 Nuclear Power
Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558
(1978). But it bears repeating that § 553 of the APA requires
only a notice providing a “description of the subjects and
issues involved”; time for interested persons to comment; and
a “concise general statement” of the rule’s “basis and
purpose.” 5 U.S.C. § 553. Courts have incrementally
expanded those APA procedural requirements well beyond
what the text provides. And courts simultaneously have
grown State Farm’s “narrow” § 706 arbitrary-and-capricious
review into a far more demanding test. Application of the
beefed-up arbitrary-and-capricious test is inevitably if not
inherently unpredictable – so much so that, on occasion, the
courts’ arbitrary-and-capricious review itself appears arbitrary
and capricious.
 8
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.