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FCC Classifies Broadband Over Power Line-Enabled Internet Access as "Information Service"
November 10, 2006
The Federal Communications Commission ("FCC") has declared Broadband Over Power Line ("BPL")-enabled Internet access service to be an "information service," placing BPL-enabled Internet access service on an equal regulatory footing with other broadband services, such as cable modem service and Digital Subscriber Line ("DSL") Internet access service. 1
Classification as "Information Service"
In a Memorandum and Opinion and Order ("Order") released on November 7,2006,2 the FCC began its analysis by looking at the definition of "information service" under the Communications Act of 1934, as amended (the "Act"). Noting that BPL-enabled Internet access service provides high-speed Internet access, and a host of applications, including email, web surfing, etc., that provide the "capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications," the FCC concluded that, like cable modem service and wireline broadband Internet access service, BPL-enabled Internet access service met the statutory definition of "information service." More specifically, the FCC found that BPL-enabled Internet access service is an information service because it offers a single, integrated service (i.e., Internet access) to end users, and that it combines computer processing, information provision, and computer interactivity with data transport, enabling end users to run a variety of applications (e.g., e-mail, web pages, and newsgroups).
The FCC further found that classifying BPL-enabled Internet access service as an information service advances the goals of Sections 7 and 230(b)(2) of the Communications Act, and Section 706 of the Telecommunications Act of 1996 (the "1996 Act"), by encouraging the deployment of broadband Internet access services. Likewise, the FCC noted that BPL-enabled Internet access service can provide an important homeland security function by creating redundancy in the nation's communications infrastructure and can be used to build smart grids to monitor the provision of electrical service.
Classification as "Interstate Service"
Having concluded that BPL-enabled Internet access service is an information service, the FCC also found that the service is an interstate service to the same extent as cable modem service and wireline broadband Internet access service.
Transmission Component Not a "Telecommunications Service"
A critical aspect of addressing the issue of whether BPL-enabled Internet access service is subject to regulation under Title II of the Communications Act is the statutory classification of the transmission component underlying BPL-enabled Internet access service.' Removing the uncertainty surrounding this issue, the FCC found that the transmission component of BPL-enabled Internet access service is "telecommunications" and that the offering of this telecommunications transmission component as part of a functionally integrated finished BPL-enabled Internet access service offering is not a "telecommunications service" under Section 3 of the Communications Act. The FCC further found that neither the Communications Act nor relevant precedent mandates that broadband transmission be a "telecommunications service" when provided to an Internet Service Provider ("ISP") as a wholesale input for the ISP's own BPL-enabled Internet access service offering. More specifically, the FCC concluded that, consistent with its previous broadband decisions, an end user subscribing to BPL-enabled Internet access service expects to receive (and pay for) a finished, functionally integrated service that provides access to the Internet, rather than receive (and pay for) two distinct services, namely Internet access service and a distinct transmission service.
Transmission Component May be Offered as a Common Carrier Service
Although no facilities-based provider of BPL-enabled Internet access service has an obligation to provide the transmission component of that service as a common carrier service, regardless of whether the provider is otherwise a common carrier, a BPL-enabled Internet access service provider may choose to offer the telecommunications transmission component as a telecommunications service-in which case, the transmission component is a common carrier service subject to Title II of the Communications Act.
Other Issues Raised Outside Scope of Proceeding
In their comments filed in this proceeding, some parties raised concerns regarding interference and pole attachment access. For example, several cable operators requested that the FCC, among other things, condition any information services classification on a requirement that power companies perform reasonable make-ready for pole facilities when there would otherwise be no room to attach a new wire. The FCC concluded that, while these issues are important, they are outside the scope of the proceeding and are better addressed in other proceedings pending before the FCC (e.g., WC Docket No. 04-36, RM-11303, RM-11294, etc.).
We would be pleased to respond to any questions regarding this matter.
1 The FCC initially addressed BPL in 2003 when it opened a proceeding to determine whether changes to Part 15 of its rules were necessary to facilitate the deployment of the new types of carrier current systems. These systems, known as BPL, operate on a Part 15 unlicensed basis using power lines as a transmission medium to provide high speed communications capabilities by coupling RF energy into power lines. In a notice of inquiry, the FCC outlined two types of BPL: (1) In-House BPL-BPL systems that operate inside a building; and (2) Access BPL-BPL systems operating over utility poles and medium voltage power lines. In 2004, the FCC released a notice of proposed rulemaking proposing to amend Part 15 of its rules to address Access BPL technology. The FCC subsequently released an order in which it adopted definitions for Access BPL and In-house BPL, as well as technical and certification requirements applicable to Access BPL. The FCC did not, however, address the question of the regulatory status of BPL-enabled Internet access service.
2 United Power Line Council's Petition for Declaratory Ruling Regarding the Classification of Broadband Over Power Line Internet Access Service as an Information Service, WC Docket No. 06-10, FCC 06-165, Memorandum Opinion and Order (rel, Nov. 7, 2006).
3 In prior decisions related to broadband services, the FCC has held that classifying the transmission component is essential to determining whether the provision of a service is subject to Title II regulation. There, the FCC recognized that if a transmission component is a telecommunications service, then the provision of that service is subject to common carrier regulation under Title II of the Communications Act. Conversely, if it is not, then providers of that transmission component are not subject to Title II requirements except to the extent that the FCC imposes such obligations pursuant to its ancillary jurisdiction under Title I of the Communications Act.