FCC Should Share BPL Regulation With States, Says Pa. PUC

Arguing for BPL parity with DSL and cable, the UPLC said BPL gives end-users the kind of Internet access functionality that led the FCC to dub DSL and cable information services. BPL lets users e-mail, surf the Web and otherwise interact and store data. And BPL lets devices network and interact, it said. Besides, the electric distribution network’s ubiquity lets BPL bring broadband to places DSL and cable can’t reach, the UPLC said. The Commission should class BPL as an information service “whether or not the provider uses its own facilities, if it offers VoIP, or if the service is offered as a wholesale input for ISPs.”

BPL differs from cable modem and DSL in that it wouldn’t use infrastructure ever subject to common carrier or other FCC control, the UPLC said: “Therefore, the underlying rationale for broadly classifying cable modem or DSL as information services would apply with equal or greater force in the context of encouraging the development of the nascent BPL industry.” The FCC also should consider that BPL can improve electrical service efficiency, safety and reliability and support public safety and homeland security applications, it said.

Many technical and engineering issues, including those the American Radio Relay League has raised, remain unresolved in FCC reconsideration petitions of its BPL rules, the Pa. PUC said. The FCC could find itself embroiled in litigation if they aren’t acted on first. A “hurried” classification would be “inadvisable,” since the FCC could address such a “limited issue” in “generic proceedings” such as on IP- enabled services and Intercarrier compensation, the PUC said. But if the FCC does proceed without resolving outstanding engineering and policy issues, the PUC said, it should share authority with the states. States should keep at least the power to handle consumer matters, the PUC said. It also urged the Commission to give states first crack at addressing radio interference.

A “rushed decision” to classify BPL as an information service could leave only 3 vertically integrated ISPs -- cable, DSL and BPL -- available to consumers, the PUC said. Consumers now have access to these and other ISPs, it said: “This seems to occur because providers without facilities obtain access to end-user customers through special access arrangements based on a facility owner’s common carrier status under Title II.” That may not apply if those same facilities are integrated into an information service classification applicable to voice, data or video using those facilities, the PUC said.

Saying the UPLC failed to cite commercially feasible BPL services to base an FCC decision on, the National Telecom Coop. Assn. (NTCA) urged the Commission to deny UPLC’s petition. The UPLC, NTCA said, wants the FCC to rely on “future expectations” rather than “current realities” and can’t support its claim that BPL enhances the electric grid. Referring to an FCC statement in its BPL proceeding that the technology would bring broadband to rural and underserved areas, NTCA called that view “aspirational” and not “grounded in reality.” UPLC touts BPL’s rural applications but cites trials in Manassas, Va. and Cincinnati, NCTA said: “These urban trials… do not demonstrate that BPL is commercially viable in rural markets.” BPL is a niche application with business prospects only in urban areas, it said.

Nev. CLEC Virtual Hipster voiced concern that if utility pole owners begin to deploy broadband services competing directly with companies like it, pole owners will have incentives to impose “unreasonable terms and conditions” on access to poles. In addition, BPL will cause harmful interference to attaching entities’ co-located equipment, the CLEC said. In a joint petition, Duke Energy and Cinergy Broadband said the BPL sector needs the same regulatory tools as cable and DSL to “craft its competitive offerings.” Regulatory uncertainty has impeded BPL providers’ ability to “effectively plan and finance their systems and operations.”

Several state cable groups, including Fla., Cal., Md. and S.C., said in a joint filing that utilities’ potential for “anti-competitive and discriminatory” pole attachment practices will rise if the Commission grants the UPLC request without imposing protections for attachers. The Commission should find that the term “capacity” under Sec. 224 refers to all pole capacity available to a utility, whether installed in the distribution chain or available from inventory or through “reasonable” make-ready. The FCC also should consider modifying its non-rate access and cost allocation rules, they said.

Backing the UPLC request, the Telecom Industry Assn. (TIA) said BPL clearly is “functionally and technically” comparable with DSL and cable modem and deserves the same regulatory clarity. Panasonic said FCC should require power utilities that provide BPL to use a “coexistence protocol” to eliminate interference to in-home power line communications networks sharing residential electric wiring with access BPL.