FCC LIKELY TO ADDRESS REGULATORY CLASSIFICATION OF BPL SOONER THAN LATER
With utilities girding to roll out commercial broadband over power line (BPL) services, the FCC may have to confront the issue of classifying the service sooner rather than later, said officials and lawyers we interviewed. However, opinions differed on whether the recent ruling by the 9th U.S. Appeals Court, San Francisco, overturning the FCC’s declaratory order classifying cable modem service as an interstate information service would have a direct bearing on the agency’s thinking on classifying BPL service. Utilities recently unveiled BPL commercial deployment plans ranging from this month to early next year (CD Sept 23 p4).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The 9th Circuit’s ruling “potentially does have an effect” on the BPL classification issue, said attorney Dana Frix, but it’s unclear how it would influence the agency’s thinking. The BPL industry would be “comfortable” with an information service classification, said Brett Kilbourne, regulatory dir. of the United Power Line Council (UPLC). He said the industry had stayed out of the classification fray because “right now it is a little premature for BPL to stick its nose into the whole fight.” The BPL industry is “happy being an information service,” said Alan Shark, pres. of the Power Line Communications Assn. (PLCA). The industry was pinning its hopes on the 9th Circuit decision’s not influencing the FCC’s thinking on BPL classification, he said, because “all our planning was based on the assumption that we were an information [service] provider and not a telecommunications provider.”
In the case of cable modem, the FCC had created a void by not tackling the classification issue before the courts stepped in, Frix said. While the 9th Circuit had held that it was bound by its earlier conclusion in AT&T v. Portland that cable-delivered Internet service was in part a telecom service, it said it could not invoke any exceptions to that rule because in that case the FCC had declined, in its regulatory capacity and as amicus curiae to address the issue (CD Oct 7 p1). The court ruled that precedent could be disregarded in favor of a subsequent interpretation “only where precedent constituted deferential review of [an agency’s] decision making.” That could impel the FCC to act on the BPL issue sooner rather than later, Frix said, because if the agency didn’t act, “the court system may well act, and in doing so usurp the FCC’s authority.” Because the current FCC is “overly deregulatory” it would seek to apply the information services designation to BPL as it involves minimum regulation, he said.
As far as BPL was concerned, there were some"distinguishing” factors to be taken into account in any discussion on regulatory classification, UPLC’s Kilbourne said. BPL wasn’t just a technical and commercial offering but also had internal applications for the power utility. The BPL industry’s take on the 9th Circuit’s decision was “stay tuned,” he said. The FCC clearly was going to challenge the decision, Kilbourne said: “We don’t know how things are going to come out but it certainly looks as though the FCC will ultimately gets its way. The added level of [regulatory] uncertainty is the only concern we have.” Of equal concern to BPL was the jurisdictional issue of whether BPL would be subject to potentially conflicting federal and local regulations that might occur in so far as states had jurisdiction over local telecommunications, he said. To the extent that BPL systems are capable of providing voice-type services or even that they simply are providing Internet services, “you could see the states taking that on,” Kilbourne said: “So our position at this point is wait and see.”
The industry also appeared to be banking on the FCC’s forbearance authority in case BPL classification became involved in court battles. Citing the agency’s forbearance proceedings, PLCA’s Shark said: “If it turns out that we are swept in under a different regulatory pattern, we think the FCC has ample room to exclude us, at least during the fragile stages of our development.” Another factor working for BPL is that there was “enormous support” from the Commission on the policy side to “see that this [BPL] works for all the right reasons,” he said. From the nascent technology doctrine propounded by Comr. Abernathy to the views expressed by Chmn. Powell, Shark said, “there was no contentiousness. All the people think that BPL is a positive step for the consumer.”
On the question of likely open access requirements on BPL for carriage of multiple ISPs, Kilbourne said the industry’s position always had been that “we welcome open access and it’s not an issue.” Given that, he said, there was little need for BPL to be regulated by state or local govts. or the FCC on the issue. The current BPL systems technically were capable of carrying multiple ISPs, he said, but it still wasn’t possible for them to provide access to multiple BPL providers. Carriage of multiple ISPs was possible, said Shark, but it depended on the manufacturers, pointing out that there were 4 competing technologies.