Subject: [NEXTEL-1] COURT APPEARS SKEPTICAL OF CHALLENGE TO FCC's REMAND ORDER ON AirCell WAIVER

From: Marcelrf <[email-masked]>
Date: Tue, 16 Mar 2004 13:32:08 -0500

COURT APPEARS SKEPTICAL OF CHALLENGE TO FCC's REMAND ORDER ON AirCell
WAIVER

A three-judge panel of the U.S. Court of Appeals in Washington appeared
skeptical today of a challenge by several wireless carriers of an FCC
order reaffirming its decision to grant AirCell, Inc., a waiver of rules
prohibiting the use of mobile phones in aircraft. The order was released
in February 2003 in response to a November 2001 remand from a separate
three-judge panel of the court. In that ruling, the court upheld the
FCC's decision to permit AirCell to operate its air-to-ground
communications system but ordered the agency to explain how it arrived
at an interference threshold related to the safe operation of AirCell's
system.

During oral arguments today in the case ("AT&T Wireless Services, Inc.,
et al. v. FCC," no 03-1043), L. Andrew Tollin, an attorney for AT&T
Wireless, Cingular Wireless LLC, and Verizon Wireless argued that in its
remand order, the Commission violated the court's instructions by
failing to explain its interference threshold and even adopting a more
permissive standard. He said the court should vacate AirCell's waiver
authority. Specifically, Mr. Tollin said the FCC had failed to defend
its interference threshold of minus 117 decibels below one milliwatt
(dBm) and had abandoned it in favor of a minus 110 dBm standard.

He also complained that the agency had switched from use of the "noise
floor" as the basis for determining the level of interference protection
that was necessary for cellular operators. And he said the Commission
had discussed average signal strengths rather than raw testing data, as
the court had instructed, and permitted a reduction of the 17 dB ratio
necessary to protect cellular operators from interference. "This is like
a brand new order," Mr. Tollin said. But FCC attorney Roberta L. Cook
responded that the FCC "very thoroughly, very conscientiously" addressed
the court's remand order, explaining why it rejected a more conservative
minus 124 dBm threshold in favor of minus 117 dBm. She said the
Commission had relied on average signal strength because it measured a
system's "sustained power," not individual signal peaks. She added that
the issue of whether the FCC had violated the court's remand order by
choosing a new threshold level was not properly before the judges
because the wireless carriers had not first raised the issue before the
Commission. But she said there was no such violation. In its brief in
the case, the FCC said the court had not "intended to bind the
Commission's choice of an appropriate threshold on remand." The judges
seemed to agree

. "They're able to change their rationale on remand and give another
explanation as long as it's reasonable," said Judge Merrick B. Garland.
Judge Garland said the court had not asked the FCC to defend its harmful
interference threshold but only asked the agency to "explain where that
number came from." Judge Judith W. Rogers, who wrote the remand
decision, noted that the court had said that the FCC may be able to
easily explain how it decided on its interference standard. Judge
Garland repeatedly asked Mr. Tollin why the court should consider the
carriers' argument that the Commission had abandoned its use of the
noise floor to gauge interference when the issue had not been presented
to the agency first. Mr. Tollin replied that the use of the noise floor
was mentioned in the court's remand order and in FCC decisions at both
the Wireless Telecommunications Bureau and Commission levels.

But Judge David B. Sentelle and the other judges said the court's remand
order had mentioned the noise floor as background and the agency orders
talked about the "noise level," rather than "noise floor." Mr. Tollin
said they meant the same thing. The judges seemed skeptical. "You're
asking us to put a term in there that neither the bureau or the
Commission used," Judge Rogers said. Judge Garland also told Mr. Tollin
that a footnote in the FCC's order explained how they arrived at the
minus 117 dBm threshold. AT&T Wireless, Cingular, and Verizon Wireless
also have opposed AirCell's request for an extension and expansion of
its waiver. A source said the FCC was expected to issue a decision on
AirCell's request next month. - Paul Kirby, [email-masked]

http://www.tr.com/online/trd/2004/td031504/index.htm

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