[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Proposed Rules]
[Pages 42631-42639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20336]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 15

[ET Docket Nos. 04-37 and 03-104; FCC 09-60]


Broadband Over Power Line Systems

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document addresses certain issues from the Commission's 
Report and Order on rules for broadband over power line systems and 
devices (BPL Order) that was remanded by the United States Court of 
Appeals for the District of Columbia. In the BPL Order, the Commission 
established technical standards, operating restrictions and measurement 
guidelines for Access Broadband over Power Line (Access BPL) systems to 
promote the

[[Page 42632]]

development of such systems while ensuring that licensed radio services 
are protected from harmful interference. In ARRL v. FCC, the court 
remanded the BPL Order to the Commission for further consideration and 
explanation of certain aspects of its decision. Specifically, the court 
directed the Commission to provide a reasonable opportunity for public 
comment on unredacted staff technical studies on which it relied to 
promulgate the rules, to make the studies part of the rulemaking 
record, and to provide a reasoned explanation of the choice of an 
extrapolation factor for use in measurement of emissions from Access 
BPL systems.

DATES: Comments must be filed on or before September 23, 2009, and 
reply comments must be filed on or before October 8, 2009.

ADDRESSES: You may submit comments, identified by ET Docket No. 04-37 
by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    <bullet> E-mail: [Optional: Include the E-mail address only if you 
plan to accept comments from the general public]. Include the docket 
number(s) in the subject line of the message.
    <bullet> Mail: [Optional: Include the mailing address for paper, 
disk or CD-ROM submissions needed/requested by your Bureau or Office. 
Do not include the Office of the Secretary's mailing address here.]
    <bullet> People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#02444141373236426461612c656d74"><span class="__cf_email__" data-cfemail="1c5a5f5f292c285c7a7f7f327b736a">[email protected]</span></a> or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Anh Wride, Office of Engineering and 
Technology, (202) 418-0577, e-mail: <a href="/cdn-cgi/l/email-protection#4d0c2325631a3f2429280d2b2e2e632a223b"><span class="__cf_email__" data-cfemail="98d9f6f0b6cfeaf1fcfdd8fefbfbb6fff7ee">[email protected]</span></a>, TTY (202) 418-
2989.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Request for Comment and Further Notice of Proposed Rule Making, 
ET Docket No. 04-37 and 03-104, FCC 09-60, adopted July 16, 2009, and 
released July 17, 2009. The full text of this document is available for 
inspection and copying during normal business hours in the Commission's 
Reference Information Center, Portals II, 445 12th Street, SW., (Room 
CY-A257), Washington, DC 20554. The complete text of this document also 
may be purchased from the Commission's copy contractor, Best Copy and 
Printing, Inc., Portals II, 445 12th Street, SW., Room, CY-B402, 
Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-
5563 or via e-mail <a href="/cdn-cgi/l/email-protection#5d1b1e1e1d1f1e0d140a181f733e3230"><span class="__cf_email__" data-cfemail="e4a2a7a7a4a6a7b4adb3a1a6ca878b89">[email protected]</span></a>. The full text may also be 
downloaded at: http://www.fcc.gov.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking 
Portal, or (3) by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
    <bullet> Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
    <bullet> For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to <a href="/cdn-cgi/l/email-protection#8ce9efeaffcceaefefa2ebe3fa"><span class="__cf_email__" data-cfemail="6a0f090c192a0c0909440d051c">[email protected]</span></a>, and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
    <bullet> Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although we continue to experience delays in receiving U.S. 
Postal Service mail). All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
    <bullet> The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    <bullet> U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street, SW., Washington DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="c8aeababfdf8fc88aeababe6afa7be">[email protected]</a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    Filings and comments are also available for public inspection and 
copying during regular business hours at the FCC Reference Information 
Center, Portals II, 445 12th Street, SW., room CY-A257, Washington, DC 
20554. They may also be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554, telephone: (202) 488-5300, 
fax: (202) 488-5563, or via e-mail http://www.bcpiweb.com.

Summary of Request for Further Comment and Further Notice of Proposed 
Rulemaking

    1. This Request for Further Comment and Further Notice of Proposed 
Rulemaking (FNPRM), addresses certain issues from the Commission's 
Report and Order on rules for broadband over power line systems and 
devices (BPL Order), 70 FR 1360, January 7, 2005, that was remanded by 
the United States Court of Appeals for the District of Columbia. In the 
BPL Order, the Commission established technical standards, operating 
restrictions and measurement guidelines for Access Broadband over Power 
Line (Access BPL) systems to promote the development of such systems 
while ensuring that licensed radio services are protected from harmful 
interference. In ARRL v. FCC, the court remanded the BPL Order to the 
Commission for further consideration and explanation of certain aspects 
of its decision. Specifically, the

[[Page 42633]]

court directed the Commission to provide a reasonable opportunity for 
public comment on unredacted staff technical studies on which it relied 
to promulgate the rules, to make the studies part of the rulemaking 
record, and to provide a reasoned explanation of the choice of an 
extrapolation factor for use in measurement of emissions from Access 
BPL systems.
    2. The unredacted staff technical studies have been placed into the 
record of the proceeding and the Commission is requesting comment on 
the information in those studies as it pertains to our BPL decisions. 
The Commission is also placing into the record certain additional 
materials that contain preliminary staff research and educational 
information and were not previously available therein. In response to 
its remand of a portion of the BPL measurement procedure, the 
Commission is also providing an explanation of our reasons for 
selecting 40 dB per decade as the extrapolation factor for frequencies 
below 30 MHz. The Commission further explains why it believes that the 
studies and technical proposal submitted earlier by the ARRL do not 
provide convincing information that we should use an extrapolation 
factor that is different from that which was adopted. The Commission 
also notes the existence of more recent studies that verify the 
correctness of our determination, although we do not rely on those 
studies as post facto rationale or justification for our decision.
    3. Consistent with the opportunity provided by the court's remand 
and the Commission's stated intention in the BPL Order to review the 
decision on the extrapolation factor if new information becomes 
available, we are also re-examining the current extrapolation factor in 
light of the recently issued technical studies addressing the 
attenuation of BPL emissions with distance and efforts by the IEEE to 
develop BPL measurement standards. As the several studies now available 
show and as the Commission has observed previously, there can be 
considerable variability in the attenuation of emissions from BPL 
systems across individual measurement sites that is not captured in the 
fixed 40 dB per decade standard. To address this variability, the 
Commission is requesting comment on whether it should amend the BPL 
rules to (1) adjust the extrapolation factor downward to 30 dB or some 
other fixed value and, (2) as an alternative, also allow use of a 
special procedure for determining site-specific BPL extrapolation 
values using in situ measurements. The special in situ procedure the 
Commission is proposing is based on a concept under consideration by 
the Institute of Electrical and Electronics Engineers (IEEE) working 
group on power line communications technology electromagnetic 
compatibility (EMC). In addition, the Commission clarifies that parties 
testing BPL equipment and systems for compliance with emissions limits 
in our the rules may measure at the standard 30 meter distance rather 
than only the shorter distances recommended in the BPL measurement 
guidelines. The Commission request comments on the unredacted staff 
studies, our decision for selecting an extrapolation factor for BPL 
systems based on slant range method and the explanation provided 
herein, and our proposal to allow use of site-specific extrapolation 
factors as an alternative to the standard extrapolation factor. In the 
interim, as justified herein, the Commission will continue to apply the 
standard as adopted in the BPL Order.

Issues for Comment

A. Staff Technical Studies

    4. In the BPL Order, the Commission adopted operational and 
technical requirements and restrictions on Access BPL devices over and 
above those applied to other Part 15 devices. These included 
requirements for consultation with specific entities, mandatory listing 
of BPL installations in a public database, exclusion of certain 
frequencies from operation, exclusion zones, frequency notching, and a 
remote shut-down mechanism, and were based on the aggregate information 
from comments and technical studies submitted into the rulemaking 
record, including ARRL's and FCC staff's studies.
    5. Subsequent to the release of the BPL Order, the Commission on 
December 22, 2004 submitted five staff technical studies, in redacted 
form, into the record of the above-mentioned docket in response to a 
Freedom of Information Act (FOIA) request from ARRL. The staff studies 
measured emissions from various Access BPL systems at various locations 
in Pennsylvania, Maryland, New York, and North Carolina. The studies 
were used in the decision-making process along with studies submitted 
by commenters such as ARRL and the National Telecommunications and 
Information Administration (NTIA). The Commission redacted certain 
portions of those studies on the basis that they represented 
preliminary or partial results or staff opinions that were part of the 
internal deliberative process. On reconsideration of the BPL Order, 
ARRL alleged that the Commission violated the APA reasoned decision 
making requirements because it responded to ARRL's FOIA request 
belatedly and because it redacted certain information from the released 
information. The Commission disagreed with ARRL's arguments, and ARRL 
sought judicial review of the Commission's decisions in the BPL Order 
and the Reconsideration Order.
    6. In ARRL v. FCC, the court determined that the APA requires the 
Commission to disclose the studies upon which it relies in promulgating 
rules, and it directed the Commission to make available for notice and 
comment the unredacted ``technical studies and data that it has 
employed in reaching [its] decision.'' In accordance with the court's 
mandate, and in response to a FOIA request from ARRL filed March 31, 
2009, the Commission has placed in the record complete copies of the 
five staff studies identified by the court, including the previously 
redacted pages. The first two studies, included in a single file 
entitled BPL Measurements in Allentown, PA, contain data collected on 
the Amperion BPL system and on the Main.Net BPL system, both in 
Allentown, PA. The third study, Emissions Measurements on Current 
Technologies Medium Voltage BPL System, contains data collected on the 
Current Technologies BPL system in Potomac, MD. The fourth study, BPL 
Summary After Briarcliff Manor, NY Test, contains data collected on the 
Ambient BPL system in Briarcliff, NY, and some staff reactions. The 
fifth study, BPL Emission Test Near Raleigh, NC, contains data 
collected on the Amperion/Progress Energy BPL system in Raleigh, NC. 
The Commission observes that the redacted pages mostly contain 
information regarding specific test notes and test set-up 
recommendations with respect to the BPL systems at the various test 
sites, certain requests from third parties, and preliminary and partial 
data with respect to the noise floor and with respect to the 
attenuation rate of the signal strength at the test sites as well as 
the opinion of one staff member as to whether BPL systems are point-
source systems and that staff member's proposed options on how to treat 
these systems. The Commission seeks comment on the information 
contained in these staff studies as it pertains to the issues in this 
proceeding.
    7. The Commission has several staff working papers and video files 
that contain data and information on research from BPL field tests that 
were used in preparing the staff studies and

[[Page 42634]]

for staff education. These are materials that the Commission would not 
routinely, and in this case did not, place in the record. However, in 
order to fully and most efficaciously continue to examine this issue, 
the Commission believes it is important that it make available all 
potentially relevant research and information materials. The Commission 
is therefore placing these additional materials in the record of this 
proceeding and invites comment. A list of these additional materials is 
provided in Appendix E of this ``Request for Further Comment and 
FNPRM.''

B. Distance Extrapolation Factor

    8. ARRL filed a petition for reconsideration of the Commission's 
decision to use 40 dB per decade as the extrapolation factor for 
frequencies below 30 MHz. In support of its argument that an 
extrapolation factor of 20 dB per decade should be used, ARRL also 
submitted, through ex parte comments, the results of three studies 
conducted by the United Kingdom's Office of Communications (OFCOM) and 
one by the Special International Committee on Radio Interference 
(CISPR) regarding emission measurements for BPL systems. On 
reconsideration, the Commission affirmed its decision to use the 
existing Part 15 distance extrapolation factor of 40 dB per decade 
decay rate for measuring BPL emissions on frequencies below 30 MHz, 
stating: ``No new information has been submitted that would provide a 
convincing argument for modifying this requirement at this time.''
    9. In ARRL v. FCC, the court found that the Commission did not 
offer a reasoned explanation for its dismissal of empirical data that 
was submitted ex parte by ARRL, i.e., the three studies conducted by 
OFCOM and additional ARRL analysis intended to suggest that an 
extrapolation factor of 20 dB per decade may be more appropriate for 
Access BPL. The court faulted the Commission for summarily dismissing 
the data submitted by ARRL because such a conclusory statement 
``provides neither assurance that the Commission considered the 
relevant factors nor a discernable path to which the court may defer.'' 
The court ordered the Commission either to ``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.''
    10. ARRL's proposal for a sliding scale extrapolation factor 
referenced a 1996 CISPR Standard. This standard, which was published in 
1996 well before Access BPL was developed, evaluates radio noise 
generated by high-voltage converter power stations and similar high-
voltage installations and discusses methods on how to reduce radio 
noise from inherent power line components, such as mercury arc and 
thyristor valves. ARRL pointed to a graph in the standard, Figure 17, 
which shows calculated values of the field strength attenuation of 
emissions from a vertical electrical dipole antenna as a function of 
the distance on a horizontal plane for different frequencies. Based on 
this graph, ARRL then proposed a formula which effectively constitutes 
a sliding-scale calculation for an extrapolation factor that varies 
with frequencies.
    11. In the period of time since the Commission's adoption of the 
Reconsideration Order, reports have become available on two new 
technical studies addressing attenuation of BPL emissions with 
distance, one by NTIA in October 2007 that describes a second phase of 
its simulation study on the potential for interference from Access BPL 
systems (NTIA Phase 2 Study) and the other by the Federal Republic of 
Brazil (Brazil Study) in June 2008 that presents the results of a 
measurement study of BPL emissions. In addition, the Commission is 
aware that the IEEE working group on power line communications 
technology electromagnetic compatibility is working on a standard for 
EMC testing and measurements methodology for BPL equipment and 
installations (IEEE P1775/D2) that includes a provision for determining 
extrapolation (distance correction) factors on a site-by-site basis 
using in situ measurements as part of its work on that standard.
    12. Consistent with the Commission's stated intention in the BPL 
Order, to review the decision on the extrapolation factor if new 
information becomes available and the opportunity provided by the 
Court's remand of the extrapolation factor for explanation, the 
Commission is reviewing its decision on that factor in light of the 
NTIA Phase 2 and Brazil studies and the site-specific option suggested 
by the IEEE P1775/D2 work. The Commission's goal is to provide BPL 
measurement procedures that will adequately ensure compliance with the 
Sec.  15.209 emissions standard for emissions at or below 30 MHz 
without placing unfair or undue compliance burdens on equipment 
manufacturers and users. In conducting this review, the Commission 
advised interested parties that at this point it continues to believe 
that the decision to apply the existing 40 dB per decade distance 
attenuation extrapolation factor in the rules for Access BPL 
operations, in conjunction with slant distance, on frequencies in this 
range was reasonable and appropriate.
    13. The Commission is also mindful that the Court has ordered that 
it provide a reasoned justification for retaining the 40 dB per decade 
extrapolation for Access BPL systems or adopt another factor and 
provide reasoning, and specifically remarked that the Commission did 
not offer an explanation for dismissing the technical studies and 
technical proposal for an alternative extrapolation submitted ex parte 
in 2005 by ARRL. The Commission is therefore providing an explanation 
of its reasons for selecting 40 dB per decade as the extrapolation 
factor for frequencies below 30 MHz and why it do not believe that the 
studies and technical proposal submitted earlier by the ARRL provide 
convincing information that the Commission should use an extrapolation 
factor that is different from (and, specifically, less than) 40 dB. The 
Commission believes that the NTIA Phase 2 and Brazil Studies further 
validate the use of 40 dB as the extrapolation factor. In addition, the 
sufficiency of the rules for ensuring compliance is further validated 
by the fact that the Commission has not had any new complaints of 
interference for more than two years.
    14. The Commission also recognizes, however, that there can be 
considerable variability in the attenuation of emissions from BPL 
systems at individual measurement sites, although NTIA's modeling 
results do not generally indicate that differences are expected to be 
typically as high as the 15 to 20 dB for an underground system such as 
was observed in the Winchester Study. To address this variability, the 
Commission is requesting comment on whether it should adjust the 
extrapolation factor downward to 30 dB or some other fixed value and 
also specify and allow use of a special procedure for determining site-
specific BPL extrapolation values using in situ measurements. The 
procedure for determining these site-specific extrapolation values 
would follow the general model under consideration in the IEEE P1775/D2 
work.
    15. The Commission is requesting that interested parties submit 
additional comment and information on the BPL extrapolation factor and 
on our proposal to modify the value specified for that factor and to 
alternatively allow use of special procedure for determining site-
specific BPL extrapolation values. Such comment and information should

[[Page 42635]]

address (1) the three studies and proposal for a sliding scale 
extrapolation factor submitted previously by the ARRL as part of its ex 
parte filing on July 8, 2005 in conjunction with its petition for 
reconsideration of the BPL Order identified by the court, (2) the NTIA 
Phase 2 and Brazil studies with respect to findings on the 
extrapolation factor for BPL systems, and (3) our existing slant range 
method as it pertains to the effective field attenuation rate in a 
horizontal distance context. The Commission further request submission 
of any other new empirical studies or information that may inform us 
regarding the BPL distance attenuation extrapolation factor. Our goal 
is to ensure that the extrapolation factor used when tests cannot be 
made at the standard measurement distance provides effective protection 
to authorized services from harmful interference without unnecessarily 
burdening Access BPL technology.
a. The 40 dB per Decade BPL Extrapolation Factor
    16. In explaining our reasoning for adopting 40 dB per decade as 
the extrapolation factor value for BPL emissions, it is important to 
understand that this is a measurement protocol (or ``tool''), not an 
adjustment to the emissions standard. The Commission first observed 
that a concern in the BPL proceeding was that BPL systems are not 
traditional point-source emitters. Rather, they could act to some 
extent in a manner similar to line source emitters that would radiate 
along the power lines, and, therefore the emissions from these systems 
would not attenuate in the same manner as a typical point-source 
emitter. In addressing this concern in the BPL Order, the Commission 
agreed with the ARRL that Access BPL systems on overhead lines are not 
traditional point-source emitters.
    17. The Commission also observed that NTIA's earlier BPL computer 
simulation modeling as reported in the Technical Appendix to its June 
2004 comments showed results indicating that the attenuation in field 
strength of emissions from BPL systems with distance from the power 
line is consistent with the existing distance extrapolation factors for 
unlicensed devices in Sec.  15.31(f)(1) and (2) of the Commission's 
rules when used with the slant range to the power line. No party 
offered analysis or argument to dispute NTIA's results. These 
simulation results were conducted using the widely recognized and 
employed National Electromagnetic Code (NEC) software for analyzing 
radio propagation. Although, the Commission does not rely on NTIA's 
more recent Phase 2 simulation results to justify its earlier decision, 
the Commission noted here that those results indicate that the 
attenuation at individual locations can be expected to vary around the 
standard 40 dB value with frequency, configurations of line 
arrangements on poles, and other site-specific characteristics. The 
Commission is aware that measurements of the emissions from BPL systems 
at different distances will vary, but cluster around the 40 dB per 
decade factor. As the NTIA simulation results show, this variation is 
to be expected when measuring emissions below 30 MHz from points near 
the ground at distances close to a source of emissions.
    18. While the Commission recognizes the potential value and 
importance of empirical data with respect to this issue, there were no 
significant studies that examined the very large number of measurements 
that would be needed to address the different site characteristics that 
affect the attenuation of emissions below 30 MHz. In this regard the 
studies submitted by the ARRL in its 2005 ex parte provided only 
anecdotal information on two different types of installations (overhead 
and underground) from two single sites, and also had certain 
methodological shortcomings. These studies did not provide sufficient 
information to support a statistically valid and comprehensive 
description of how BPL emissions attenuate over the short distances at 
which measurements are made.
    19. The Commission specifically observed that only two of the 
studies (the Winchester Study and the Crieff Amperion Study) collected 
data relevant to the extrapolation factor. In addition, those two 
studies each report only a few measurements on a small number of 
operating frequencies along a single perpendicular path each at two 
small and very dissimilar BPL installations (one underground and one 
overhead) on power line configurations which may not be representative 
of power line configurations in the United States. In order for a study 
to provide statistically significant information on the attenuation of 
BPL emissions in the close vicinity of power lines and to adequately 
include signal conditions under different configurations of power lines 
on a pole or underground installations, a much larger body of empirical 
data at sites with varying configurations of power line attachments to 
poles and differing site characteristics would be needed. Moreover, 
such samples would need to demonstrate that they are conducted on power 
distribution systems representative of those found in the U.S.
    20. Second, the RF propagation environments in which BPL emissions 
are measured can affect the results such that results from a given site 
may not be characteristic of the general rate at which BPL emissions 
attenuate. The measurements in these two studies were taken near the 
ground (as are measurements BPL emissions under our measurement 
procedure), where the field strength of radio signals, and particularly 
those below 30 MHz, is typically affected to a significant degree by 
reflections and absorption by the ground, nearby vegetation, vehicles, 
structures, measuring equipment, equipment stands, and even the 
positions of the persons making the measurements. Of particular 
importance in this context are the presence and configuration of other 
power lines in addition to the power line to which the BPL device is 
attached and of metallic structures and vehicles. Because of the 
effects of these factors, the field strengths of radio signals emitted 
at the same power level will often vary significantly when measured 
near the ground at different locations that are the same distance from 
a source. Thus, in order to obtain empirical data from which general 
conclusions about the attenuation characteristics of Access BPL 
emissions may be drawn, it is necessary to have a very large number of 
observations from different BPL installations and from different 
locations at those installations. The small number of observations 
provided by the measurements in the Winchester and Crieff Amperion 
studies is not sufficient to form a basis for establishing a value for 
the extrapolation factor.
    21. The Commission notes that even at the two installations 
examined in the OFCOM studies, the data describe that the 
electromagnetic field attenuates at different rates. In addition, the 
data does not even appear sufficient to determine whether the type of 
BPL technology and architecture made a difference in the field 
attenuation rate. Moreover, OFCOM itself recommends that ``[d]uring the 
course of future PLT leakage emission measurements, further work is 
undertaken to confirm this finding elsewhere. The Commission saw 
nothing in the studies submitted by the ARRL that would warrant 
selection of a different (lower value) extrapolation factor.
    22. With respect to its proposal for a sliding scale extrapolation 
factor, the Commission observed that the ARRL did not provide an 
explanation as to how its formula was derived or how to

[[Page 42636]]

use it to determine the extrapolation factor, nor did it provide a 
rationale for selecting such a formula. Further, even the CISPR graph 
has no explanation for the data showed thereon. In addition, the 
Commission has no information as to the relationship between the 
performance of emissions from BPL technology and the specifications for 
reduction of power line noise adopted in the standard. Therefore, the 
Commission was unable to determine whether or how the sliding scale 
factor proposed by the ARRL could be used to represent the attenuation 
of emissions from a BPL system.
    23. Accordingly, the extrapolation factor adopted in the BPL Order, 
and affirmed in the BPL Reconsideration Order, was based on the best 
information available at the time each of those decisions were made, 
while acknowledging that it might be desirable to revisit this issue if 
more information would become available, as we are now undertaking.
b. Review of the Extrapolation Factor
    24. In reviewing the BPL extrapolation factor, the Commission 
intends to seek new information and studies, including those with 
empirical research, and to consider new approaches for the 
extrapolation that could use a lower value for the attenuation rate of 
emissions. Looking at new information, shortly after the release of the 
Commission's BPL Reconsideration Order, NTIA published its ``Phase 2 
Study.'' This study illustrates the application of the Commission's BPL 
rules and measurement guidelines in a case study. Using the well-known 
and validated simulation software it employed in its Phase 1 Study, 
NTIA created an elaborate power line model that approximates existing 
overhead Access BPL power line structures in the U.S. After applying 
the emissions limits and methodology from the BPL measurement 
guidelines, NTIA analyzed the noise floor increase expected in nearby 
receivers as a result of BPL operations. NTIA states that its 
simulations confirm that ``at or above 10 MHz, the simulation results 
show good agreement between the rate that field strength decays and the 
part 15 distance extrapolation rate using the slant range distance to 
the Access BPL device and power lines.'' NTIA does, however, further 
state that ``the simulations in the 4 to 8 MHz frequency range 
exhibited somewhat slower rates of field strength decay with distance 
than would be expected by the distance extrapolation rate in the part 
15 rules for Access BPL systems. This difference was up to 6 dB less 
than the distance extrapolation rate.
    25. The Commission also observes that, like OFCOM in the United 
Kingdom, the regulatory agencies of other countries are testing BPL 
systems as part of the international forum's discussions on BPL 
technology. The recently released study from the Federal Republic of 
Brazil reports results that show attenuation of emissions from BPL that 
is greater than the 40 dB per decade extrapolation factor, which 
indicates variation on the other side of the results found in the OFCOM 
studies. Here again, the amount of data collected is relatively small. 
The Commission believes that the information in the NTIA Phase 2 and 
Brazil studies, when viewed in light of the NTIA's Technical Appendix 
and the OFCOM studies taken together not only provide validation for 
our previous conclusions selecting 40 dB per decade as the 
extrapolation factor, recognizing that there will be variation around 
that value at individual locations, but also inform our further 
consideration of this matter.
    26. There may be other new studies of the attenuation of BPL 
emissions with distance. The Commission requests that interested 
parties provide additional empirical information and studies regarding 
the distance extrapolation factor for use in measurements of emissions 
from Access BPL operating below 30 MHz. Such information and studies 
will be most useful if they are compiled using the FCC measurement 
guidelines and cover various BPL technologies that operate below 30 
MHz. The data should also cover the different operating frequencies of 
BPL emitters in their typical deployment configurations and the field 
strength attenuation at these frequencies. Access BPL systems from 
which data is collected also should be representative of power line 
configurations (underground and overhead) and current BPL network 
architectures in the United States.
    27. The Commission also observes that the slant range distance in 
the measurement procedure works with the 40 dB per decade factor to 
yield extrapolated measurement values that have the effect of imposing 
a more conservative emissions standard than would be derived if using 
the horizontal distance from a power pole. In this regard, at 
relatively short distances, i.e., distances 30 meters or less, the 
slant range measurement method effectively reduces the emission limit 
for BPL systems with respect to the horizontal distance from the pole 
because at any given horizontal distance from the pole, the slant range 
distance is longer than the horizontal distance. This is simple 
geometry resulting from the height of the power line on which the BPL 
emitter is installed. (The hypotenuse of a right triangle is longer 
than either of the sides.) When extrapolated values at 40 dB per decade 
of slant range distance are plotted against the horizontal distance, 
the effective slant range emission limit curve more closely follows the 
emission limit curve based on a 20 dB per decade extrapolation factor 
than the emission limit curve based on a 40 dB per decade extrapolation 
factor. NTIA's modeling results effectively support this observation. 
The Commission also notes that given that its BPL measurement procedure 
requires that compliance measurements be taken at 30 meters or less, 
the effect of the slant range distance provision is significant at all 
distances where the extrapolation factor can be used. The Commission 
seeks comment on our slant range method as it pertains to the effective 
field attenuation rate in a horizontal distance context and on NTIA's 
findings with respect to the extrapolation factor in its Phase 2 Study.
    28. The Commission observes that while 40 dB per decade continues 
to best describe the attenuation rate of emissions from BPL systems, 
there is also considerable variability around that value at different 
sites. The result of this variability is that the actual attenuation at 
some sites could be less than 40 dB per decade and using the current 
extrapolation factor at such sites could produce an adjusted 
measurement that would be less than the signal that would be measured 
at the standard 30 meter measurement distance specified in Sec.  
15.209. The Commission requests comment on whether it would be 
desirable to modify the value of the BPL extrapolation factor to be 30 
dB per decade or some other value. This lower value would apply a more 
conservative approach that would compensate for those cases where the 
actual attenuation is less than 40 dB. While the Commission does not 
have statistics that indicate the distribution of cases where the 
attenuation rate is less than 40 dB per decade, it believes that the 
additional margin provided by a 30 dB standard would encompass a large 
number of such cases. A 30 dB standard would also substantially reduce 
the remaining differences in under-adjustment of measurements at 
locations where the attenuation rate might be less than 30 dB per 
decade. The Commission further notes that extrapolated emission limits 
based on our proposed 30 dB extrapolation factor

[[Page 42637]]

when applied to slant distance are comparable to the extrapolated 
emission limits based on a 20 dB extrapolation factor applied to 
horizontal distance.
    29. The Commission recognizes that reliance on a 30 dB per decade 
extrapolation factor could increase the compliance burden for BPL 
equipment and systems that are tested at locations where the 
attenuation rate is in fact greater than 40 dB per decade. The 
Commission, therefore clarifies that in all cases measurements of BPL 
equipment and systems may be made at the 30 meters distance specified 
in Sec.  15.209 and that where possible, the Commission's staff will 
make measurements at this distance when testing for compliance. 
Further, to provide manufacturers and system operators the opportunity 
to use a higher extrapolation rate at locations where they believe the 
attenuation rate is higher than 30 dB per decade, the Commission is 
also considering allowing parties testing BPL systems for compliance 
with the radiated emissions limits to determine distance correction 
factors on a site-by-site basis using an in situ measurements 
procedure. The site-specific extrapolation factor would be an 
alternative to the proposed 30 dB per decade standard and would replace 
the existing alternative method currently in the rules but that is not 
included in the BPL measurement procedures. This alternative method 
would only be applicable to Access BPL devices operating on overhead 
power lines on frequencies below 30 MHz.
    30. The Commission requests comment on the suitability of an 
extrapolation factor lower than 40 dB per decade and the in situ 
procedure for determining the field strength of BPL emissions in 
locations where measurements cannot be made at the lateral distance of 
10 meters from the overhead line. Interested parties are invited to 
suggest alternative values for the extrapolation factor that would 
account for the variability of attenuation rates without unfairly 
burdening manufacturers of users of BPL equipment and systems. Parties 
submitting such suggestions should also provide information to support 
their proposal. Interested parties are specifically requested to 
address (1) whether use of the proposed procedure would provide an 
appropriate and reliable means of accounting for any variation in the 
attenuation rate at individual sites; (2) the effect that an 
extrapolation factor lower than 40 dB per decade would have on the 
effective emission limits for Access BPL devices operating on overhead 
power lines when used in conjunction with our slant range method; and 
(3) any special provisions that may be necessary to ensure that site-
specific attenuation rates derived through this procedure reliably and 
fairly represent the attenuation rate at individual sites.

Initial Regulatory Flexibility Analysis

    31. As required by the Regulatory Flexibility Act of 1980 as 
amended,\1\ the Commission has prepared this present Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities by the policies and rules proposed in this Further 
Notice of Proposed Rulemaking (``FNPRM''). Written public comments are 
requested on this IRFA. Comments must be identified as responses to the 
IRFA and must be filed by the deadlines for comments provided on the 
first page of the FNPRM. The Commission will send a copy of this FNPRM, 
including the IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA).\2\
---------------------------------------------------------------------------

    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Contract With America Advancement Act of 1996, Public 
Law 104-112, 110 Stat. 847 (1996)(``CWAAA''). Title II of the CWAAA 
is the Small Business Regulatory Enforcement Fairness Act of 1996 
(``SBREFA'').
    \2\  See 5 U.S.C. 603(a).
---------------------------------------------------------------------------

A. Need for, and Objectives of, the Proposed Rules

    32. Consistent with the opportunity provided by the court's remand 
and the Commission's stated intention in the BPL Order to review the 
decision on the extrapolation factor if new information becomes 
available, the Commission is re-examining the current extrapolation 
factor in light of the recently issued technical studies addressing the 
attenuation of BPL emissions with distance and efforts by the IEEE to 
develop BPL measurement standards. As the several studies now available 
show and as the Commission has observed previously, there can be 
considerable variability in the attenuation of emissions from BPL 
systems across individual measurement sites that is not captured in the 
existing fixed 40 dB per decade standard.
    33. The Commission proposes to amend part 15 of our rules to adjust 
the extrapolation factor downward to 30 dB for Access Broadband over 
Power Line (BPL) systems and, as an alternative, also allow use of a 
special procedure for determining site-specific BPL extrapolation 
values using in situ measurements. Specifically, as a means to address 
the concerns that the rate of attenuation of BPL emissions at a 
specific site can differ from the existing 40 dB per decade standard, 
the Commission proposes to modify its rules and measurement procedures 
for Access BPL to specify the use of a 30 dB extrapolation factor and 
to allow parties testing BPL systems for compliance with the radiated 
emissions limits to determine distance correction factors on a site-by-
site basis using an in situ measurements procedure when measurements 
cannot be made at the measurement distance of 30 meters as specified in 
the rules. In addition, the Commission is clarifying that parties 
testing BPL equipment and systems for compliance with emissions limits 
in the Commission rules may measure at the standard 30 meter distance 
rather than only the shorter distances recommended in the BPL 
measurement guidelines. The Commission's actions will ensure that the 
BPL measurement rules would not unnecessarily burden this technology 
while providing appropriate protection from harmful interference for 
authorized services.

B. Legal Basis

    34. This action is taken pursuant to Sections 1, 4, 301, 302, 
303(e), 303(f) and 303(r) of the Communications Act of 1934, as 
amended, 47 U.S.C. 1, 4, 301, 302, 303(e), 303(f) and 303(r).

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    35. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted.\3\ The RFA defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small business concern'' 
under Section 3 of the Small Business Act.\4\ Under the Small Business 
Act, a ``small business concern'' is one that: (1) Is independently 
owned and operated; (2) is not dominant in its field of operations; and 
(3) meets many additional criteria established by the Small Business 
Administration (SBA).\5\
---------------------------------------------------------------------------

    \3\ See U.S.C. 603(b)(3).
    \4\ Id. 601(3).
    \5\ Id. 632.
---------------------------------------------------------------------------

    36. Nationwide, there are a total of approximately 27.2 million 
small businesses, according to the SBA.\6\ A ``small organization'' is 
generally ``any not-for-profit enterprise which is independently owned 
and operated and is not dominant in its field.'' \7\ Nationwide, as of 
2002, there were approximately 1.6 million small

[[Page 42638]]

organizations.\8\ The term ``small governmental jurisdiction'' is 
defined generally as ``governments of cities, towns, townships, 
villages, school districts, or special districts, with a population of 
less than fifty thousand.'' \9\ Census Bureau data for 2002 indicate 
that there were 87,525 local governmental jurisdictions in the United 
States.\10\ We estimate that, of this total, 84,377 entities were 
``small governmental jurisdictions.'' \11\ Thus, we estimate that most 
governmental jurisdictions are small.
---------------------------------------------------------------------------

    \6\ See SBA, Office of Advocacy, ``Frequently Asked Questions,'' 
http://web.sba.gov/faqs (accessed Jan. 2009).
    \7\ 5 U.S.C. 601(4).
    \8\ Independent Sector, The New Nonprofit Almanac & Desk 
Reference (2002).
    \9\ 5 U.S.C. 601(5).
    \10\ U.S. Census Bureau, Statistical Abstract of the United 
States: 2006, Section 8, page 272, Table 415.
    \11\ We assume that the villages, school districts, and special 
districts are small, and total 48,558. See U.S. Census Bureau, 
Statistical Abstract of the United States: 2006, section 8, page 
273, Table 417. For 2002, Census Bureau data indicate that the total 
number of county, municipal, and township governments nationwide was 
38,967, of which 35,819 were small. Id.
---------------------------------------------------------------------------

    37. The proposed rules pertain to manufacturers of unlicensed 
communications devices. The appropriate small business size standard is 
that which the SBA has established for radio and television 
broadcasting and wireless communications equipment manufacturing. The 
Census Bureau defines this category as follows: ``This industry 
comprises establishments primarily engaged in manufacturing radio and 
television broadcast and wireless communications equipment. Examples of 
products made by these establishments are: Transmitting and receiving 
antennas, cable television equipment, GPS equipment, pagers, cellular 
phones, mobile communications equipment, and radio and television 
studio and broadcasting equipment.''\12\ The SBA has developed a small 
business size standard for firms in this category, which is: all such 
firms having 750 or fewer employees.\13\ According to Census Bureau 
data for 2002, there were a total of 1,041 establishments in this 
category that operated for the entire year.\14\ Of this total, 1,010 
had employment of less than 500, and an additional 13 had employment of 
500 to 999.\15\ Thus, under this size standard, the majority of firms 
can be considered small. The Commission does not believe this action 
would have a negative impact on small entities that manufacture 
unlicensed BPL devices. Indeed, it believes the actions should benefit 
small entities because it should make available increased business 
opportunities to small entities. The Commission request comment on 
these assessments.
---------------------------------------------------------------------------

    \12\ U.S. Census Bureau, 2007 NAICS Definitions, ``334220 Radio 
and Television Broadcasting and Wireless Communications Equipment 
Manufacturing''; http://www.census.gov/naics/2007/def/ND334220.HTM#N334220.
    \13\ 13 CFR 121.201, NAICS code 334220.
    \14\ U.S. Census Bureau, American Fact Finder, 2002 Economic 
Census, Industry Series, Industry Statistics by Employment Size, 
NAICS code 334220 (released May 26, 2005); http://factfinder.census.gov. The number of ``establishments'' is a less 
helpful indicator of small business prevalence in this context than 
would be the number of ``firms'' or ``companies,'' because the 
latter take into account the concept of common ownership or control. 
Any single physical location for an entity is an establishment, even 
though that location may be owned by a different establishment. 
Thus, the numbers given may reflect inflated numbers of businesses 
in this category, including the numbers of small businesses. In this 
category, the Census breaks-out data for firms or companies only to 
give the total number of such entities for 2002, which was 929.
    \15\ Id. An additional 18 establishments had employment of 1,000 
or more.
---------------------------------------------------------------------------

D. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements

    38. The FNPRM does not contain proposed new or modified information 
collection requirements.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    39. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.\16\
---------------------------------------------------------------------------

    \16\ 5 U.S.C. 603(c).
---------------------------------------------------------------------------

    40. In this FNPRM, the Commission proposed to modify its rules and 
measurement procedures for Access BPL to specify the use of a 30 dB 
extrapolation factor and, as an alternative, to allow parties testing 
BPL systems for compliance with the radiated emissions limits to 
determine distance correction factors on a site-by-site basis using an 
in situ measurements procedure when measurements cannot be made at the 
measurement distance of 30 meters as specified in the rules. In 
addition, the Commission clarifies that parties testing BPL equipment 
and systems for compliance with emissions limits in the rules may 
measure at the standard 30 meter distance rather than only the shorter 
distances recommended in the BPL measurement guidelines. The Commission 
seeks comment on the alternatives and the clarification.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    41. None.

Ordering Clauses

    42. Pursuant to Sections 1, 4, 301, 302, 303(e), 303(f) and 303(r) 
of the Communications Act of 1934, as amended, 47 U.S.C. 1, 4, 301, 
302, 303(e), 303(f) and 303(r), the Request for Comment and Further 
Notice of Proposed Rule Making is hereby adopted.
    43. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Request for 
Comment and Further Notice of Proposed Rule Making, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 15

    Communications equipment, Radio.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Proposed Rules Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR Part 15 to read as 
follows:

PART 15--RADIO FREQUENCY DEVICES

    1. The authority citation for part 15 continues to read as follows:

    Authority:  47 U.S.C. 154, 302, 303, 304, 307 and 544A.

    2. In Sec.  15.31 redesignate paragraphs (f)(3) through (f)(5) as 
(f)(4) through (f)(6), and add a new paragraph (f)(3) to read as 
follows:


Sec.  15.31  Measurement standards.

* * * * *
    (f) * * *
    (3) For Access BPL devices operating at frequencies below 30 MHz, 
the results shall be extrapolated to the specified distance by using an 
extrapolation factor of 30 dB/decade. Measurements may be performed at 
a distance closer than that specified with the radiated emissions limit 
in Sec.  15.209 of this part; however, an attempt should be made to 
avoid making measurements in the near field. The distance correction to 
the emission limit for measurements on overhead power line 
installations shall be based

[[Page 42639]]

on the slant range distance, which is the line-of-sight distance from 
the measurement antenna to the overhead line. Alternatively, a site-
specific extrapolation factor may be used in lieu of the 30 dB/decade 
standard. This extrapolation factor shall be derived from a best fit 
straight line fit determined by a first-order regression calculation 
from measurements for at least four lateral distances from the overhead 
line. Compliance measurements for Access BPL and use of site-specific 
extrapolation factors shall be made in accordance with the Guidelines 
for Access BPL systems specified by the Commission.
* * * * *

[FR Doc. E9-20336 Filed 8-21-09; 8:45 am]
BILLING CODE 6712-01-P


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