Localities To Regulate BPL on Rights-of-Way and Customer Service

To the extent that BPL providers use ROW and public property, local regulators would have authority over matters like customer service and technical quality, National Assn. of Telecom Officers & Advisors (NATOA) Pres. Coraile Wilson told us. Localities were also “concerned about the preservation of some form of community [bandwidth] set aside,” she said. Pole attachment conditions, possibly an issue for local regulators, vary from area to area, she said, with some cities owning the poles and others having nothing to do with them. Many of these issues, she said, are caught up in larger discussions on regulating IP services and the appropriate roles of federal, state and local govts. These issues are likely to play out in Congress next year, she added.

On open access requirements for BPL providers, Wilson said, “I suspect it will come up.” One way Congress could deal with it would be to separate infrastructure owners from service and application providers, she said: “We are thinking at this point of regulating owners of the infrastructure one way and… leaving applications and services fairly deregulated might be an appropriate way to go.” She said local govts. “strongly” support BPL because they want competition and “we see broadband over power line as a potential competitor.” Many local govts., especially in rural areas, own the local power company and they could use the technology to provide services in areas without incumbents, or where the incumbents “refuse” to upgrade their networks, she said. NATOA would support efforts by the American Public Power Assn. to ward off efforts by incumbents to get legislation passed in states to bar municipal entry into the business, Wilson added.

Attorney Gerry Lederer, who represents municipalities, said he sees a “significant role” for local govts. in promoting and regulating BPL. He said many early movers in BPL were local govts., with Manassas, Va., the first to deploy the technology citywide. On the regulatory side, municipalities are waiting for the FCC to tee up nontechnical issues, Lederer said. “We want to get some clarifications as to the rights-of-way issues and ensuring that the deployment of BPL doesn’t in any way, shape or form wind up jeopardizing our 253(3) authority” over rights of way. As for whether local govts. have jurisdiction over BPL, he said anyone that uses ROW to deliver any service would “always be subject to oversight… and a rental payment for occupation of the rights-of-way.” Open access was always a “possible issue” for any communications-related business, but it was “way premature” to think about it for BPL right now, said attorney Dana Frix: “We have to see what the technology would be, who would roll it out and what the market characteristics are before you can even begin to suggest whether or not there should be an open access type of consideration.”

Under Sec. 253(c) of the Telecom Act, local govts. are allowed to manage ROW without discriminating. Some localities worry that if an electric provider offering broadband service isn’t subject to ROW management or fees, others who are paying would claim “we are discriminating against them,” a source said. Hopefully, the Commission will resolve the technical issues and then we can go to the jurisdictional and regulatory issues.” The source said open access could be a “sticky” issue for BPL providers -- the question being it means open access for communications or for power service. Another issue, the source said, is BPL’s potential to affect the exemption local govt. utilities have on poles and conduits under Sec. 224. “There really are a number of policy and jurisdictional questions that need to be addressed.” Open access for BPL “would not be an issue” with local regulators because they don’t want to do anything to slow broadband deployments, said Alan Shark, exec. dir. of Public Technology Inc., a nonprofit R&D organization representing local govts. Shark, a former pres. of the Power Line Communications Assn., said from meeting with local regulators he got the impression “it’s a pretty positive environment from that end.” The only big regulatory issues likely to come up are pole attachment and cross-subsidization, he said.

Open access is a red herring because “it’s not going anywhere when you are talking about cable or DSL,” said Brett Kilbourne, regulatory dir. of the United Power Line Council. Because most utilities considering BPL have a “wholesale mind-set,” he said, “it makes even more sense to provide access to additional ISPs. They don’t even have an affiliate and there is no motive to discriminate.” But if access was for multiple BPL providers, he said, “there you run into a technical obstacle where you don’t have a whole lot of bandwidth on the lines.” Also, utilities would have to come up with interoperability protocols that would allow them to share the lines, Kilbourne said: “So it would be technically infeasible to have multiple BPL providers based on current technology.” He said he saw no role for local authorities in regulating BPL at this point. When the industry approached some of the local govts. where deployments are in progress, they were told by regulators that they reserved the right to impose any conditions or fees applicable to other broadband providers.

“We would like to see as much of a deregulatory approach as possible,” said Jay Birnbaum, vp of Current Communications, which is providing BPL in Cincinnati. Beyond some existing ROW regulations, there isn’t much for localities to regulate, he said, because “we are not a cable franchise and we are not providing video programming to be subject to public, educational, and government [access] requirements.” He said so far the company had received an open reception from local govts. He said open access shouldn’t be mandated because the increasing number of broadband outlets diminishes the basis for mandating ISP access. But Current, which is also an ISP, wouldn’t be the only ISP available, because customers want ISP choice, he added. If every small ISP demands access, it will strain the technical capability, Birnbaum said, and “it certainly is going to add dramatically to the cost.”

In Tex., which has gone through utility deregulation the past 4 years, utilities are allowing multiple providers to offer service on their networks and charge an access fee, said Michael Lindberg, dir.-business development of Internet America, an ISP venturing into BPL. Utility deregulation split up major urban electric providers, he said, and the “whole frame of mind of the Texas PUC and the Texas government bodies is: ‘Let’s move everything towards deregulation and away form monopolies.'” So, while there’s no current regulations on BPL, the utilities must be aware that at some point the PUC is “going to do exactly what they did with the retail electric providers” and force them to open up. As utilities get past testing and pilots and move into commercial operations, they are “probably going to go down the path of a business model of saying what do we need to do if there are 3 different providers who want to provide service. That’s a very key issue for the utilities as well as ISPs in Texas.”