Southern Company, Utilities Telecom Council Push for Smart Grid Exceptions to Net Neutrality Order
Southern Company Services and the Utilities Telecom Council pushed back against Public Knowledge in docket 07-52, arguing that the FCC’s net neutrality rules could threaten the emerging “smart grid.” Southern Companies had asked the commission to reconsider part of its net neutrality rules but its petition was assailed by Public Knowledge, which said utility companies could seek declaratory judgments in court based on individual facts in a given specialized service. USTelecom said it was generally sympathetic to Southern’s point of view, but suggested that the commission reject its petition for reconsideration.
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Southern said in reply comments released Wednesday: “If anything, PK’s Opposition highlights the dilemma faced by prospective customers of specialized services and broadband providers that may wish to offer such services; that is, absent further clarification it is not clear what the FCC intends to do with specialized services and which services might be subject to future challenges” (http://xrl.us/bmm5vj). Smart grid technologies “range from automated metering infrastructure to supervisory control and data acquisition systems with an increasing number of devices embedded deeply within the electric system,” Southern said. “Broadband services provided by a carrier might not be appropriate to meet all utility communications requirements, but the FCC’s Open Internet rules create additional concerns as to whether carriers will be able to offer specialized services for even those applications that utilities would trust placing onto a public network."
The Utilities Telecom Council agreed, saying the stakes were too high to gamble on a vague neutrality order. Under current rules, power companies “will be discouraged from using such specialized services if there is uncertainty that they could be subject to Open Internet rules,” the council said (http://xrl.us/bmm5vu). “This cannot be left to chance; instead utilities need to know which specialized services would be subject to restrictions and which wouldn’t."
Public Knowledge officials couldn’t be reached for comment Wednesday. But USTelecom weighed into the matter earlier this week. It said it agreed with Southern’s “underlying substantive premise” -- that net neutrality rules do not now, and should not in future, apply to smart grid -- but there were at least three different reasons to deny Southern’s petition for reconsideration.
First, the FCC’s order last year “already confirms that smart grid services are not subject to the Commission’s net neutrality rules,” USTelecom said (http://xrl.us/bmm5v2). Net neutrality rules apply to services that “provide the capability to transmit data to and receive data from all or substantially all Internet end points,” USTelecom said, quoting last year’s order. “But smart grid services do not provide such open-ended Internet connectivity,” USTelecom said.
Second, Southern is right that the FCC has “hinted” that the smart grid might someday be subject to net neutrality rules. But the FCC also made clear that it wouldn’t extend the rules without “signs that specialized services are in any way retarding the growth of or constricting capacity available for broadband services,” USTelecom said. And “there is no evidence whatsoever before the Commission to suggest that specialized services are actually having such effects in the marketplace,” USTelecom said.
Finally, for all its concerns about discouraging smart grid investment and deployment, “Southern does not identify any particular smart grid services -- either in the market today, currently under development, or on the drawing board for the future -- that, in its view, might run afoul of the Commission’s net neutrality rules,” USTelecom said.
Whatever the outcome of Southern’s petition for reconsideration, the FCC has told appellate judges that their argument is important enough that pending court challenges should be held in abeyance “a reasonable limit -- for example, six months” while the commission weighs Southern’s case. “[A]ny action taken by the Commission in response to Southern’s petition could be material to the Court’s assessment of claims that the Open Internet rules are arbitrary and capricious because they are either too strict (likely to be argued by Verizon and MetroPCS) or too permissive (likely to be argued by Free Press),” the FCC said in its Dec. 22 filing to the U.S. Court of Appeals for the District of Columbia Circuit (http://xrl.us/bmm5ye). “In addition, a reconsideration order on the questions raised by Southern could affect the Court’s assessment of the First Amendment issues presented in this case, particularly with respect to the Open Internet rules’ alleged burden on protected speech.”