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October 15, 2004, 9:00 AM ET, Alert No. 997.
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FCC Adopts BPL Report and Order

10/14. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order that amends Part 15 of its rules regarding broadband over powerline (BPL) systems.

The FCC issued a short release describing this item, the Commissioners released statements, and FCC Chairman Michael Powell, and Federal Energy Regulatory Commission (FERC) Chairman Pat Wood released a joint statement [PDF]. The FERC also issued a release.

The FCC release states that the FCC concludes that "the interference concerns of licensed radio users can be adequately addressed and that Access BPL systems will be able to operate successfully on an unlicensed, non-interference basis under the Part 15 model. The rule changes in the Order establish specific technical and administrative requirements for Access BPL equipment and operators to ensure that interference does not occur and, should it occur, to provide for a timely resolution of that harmful interference without disruption of service to Access BPL subscribers. The Order also sets forth procedures to measure the radio frequency (RF) energy emitted by Access BPL equipment."

The FCC's release states that the order includes "rules imposing new technical requirements on BPL devices, such as the capability to avoid using any specific frequency and to remotely adjust or shut down any unit". It also includes rules that establish "excluded frequency bands" to protect aeronautical and aircraft receivers. Its also includes rules that establish "exclusion zones" close to "sensitive operations, such as coast guard or radio astronomy stations, within which BPL must avoid operating on certain frequencies".

The release also states the order provides for "consultation requirements with public safety agencies, federal government sensitive stations, and aeronautical stations". The release also references a publicly available BPL notification database.

Patrick WoodPowell and Wood (at right) wrote in their joint statement that "ubiquitous broadband deployment is important to the economic, educational, social, medical, and cultural welfare of the country. In order to achieve this goal, national policies should facilitate rapid deployment of all broadband technologies, including BPL. Policymakers at all levels should coordinate their efforts to promote a minimally intrusive policy framework for such technologies."

They added that "may help provide additional power supply system communications and control capabilities to improve reliability and efficiency. Such capabilities include ``self-healing´´ network capabilities; improved security from physical and cyber threats; facilitating use of distributed generation; customer and utility control of appliances and equipment energy use; improved load management and electric grid utilization; and such applications as automated meter reading, extension of supervisory control and data acquisition functions to the end user level, outage detection, and equipment performance monitoring."

FCC Chairman Michael Powell FCC Commissioner Kathleen Abernathy wrote in a separate statement [PDF] that "the market for last-mile connectivity for broadband services in the United States has become increasingly competitive. Today we see viable competition from multiple platforms including cable modem services, satellite, Wi-Fi, Wi-Max, and DSL. BPL provides us with a new potential competitor in the broadband market. BPL technology also holds promise in improving the provision and management of electric power systems, homeland security, and protecting vital elements of the Nation’s critical infrastructure."

"Because BPL is a nascent technology and the broadband market has no dominant incumbent service provider, only minimal regulations are appropriate." Powell and Abernathy added that "it is important for regulators to exercise restraint and avoid heavy-handed regulations. We must allow the marketplace to develop the full potential of this technology."

FCC Commissioner Kevin Martin, who also supported this item, wrote in a separate statement [PDF] that BPL can bring competition to cable and DSL broadband internet access, and bring broadband services to rural and isolated areas. He wrote that "There is no question that this technology has terrific potential."

Michael CoppsFCC Commissioner Michael Copps (at left) dissented in part. He wrote in a separate statement [PDF] that he is worries that the Report and Order lacks regulatory burdens. "But issues such as universal service, disabilities access, E911, pole attachments, competition protections, and, critically, how to handle the potential for cross-subsidization between regulated power businesses and unregulated communications businesses remain up in the air." Said Copps, "Public safety, rural service, competition and disabilities access never go out of date."

FCC Commissioner Jonathan Adelstein wrote about interference in a separate statement [PDF]. He wrote that "It is clear that some Access BPL systems can co-exist very well with existing licensees in the HF and VHF bands. In the limited cases of increased interference, the Access BPL operators were able to quickly resolve and address the interference problem. Other Access BPL systems, though, have not fared so well, and these systems should not be deployed on a commercial basis if they will continue to result in harmful interference."

Michael Gallagher, head of the Department of Commerce's National Telecommunications and Information Administration (NTIA) stated in a release that "The FCC's decision to authorize the widespread deployment of broadband over power lines (BPL) was made possible through a model of cooperation between FCC and NTIA staffs to develop responsible technical rules that fully address the potential for harmful interference to vital radio systems. With this decision, BPL is poised to become the ``third wire´´ into American homes, bringing more choices and lower costs to consumers."

United Power Line Council (UPLC) President William Moroney stated in a release that "Now that the rules have been adopted, the FCC and FERC have sent a clear message to utilities: go forth and deploy! Our member utilities have carefully tested the technology for years in a variety of conditions throughout the country, and are poised to answer the call for universal affordable broadband and to promote competition in the broadband market for ISPs and carriers to reach their customers. Help is on the way, but there is still work ahead. BPL is still a nascent service, and the UPLC urges regulatory restraint to enable the technology to continue to mature and to allow the industry to grow. We look forward to continuing to work with the FCC, Congress, and state and local regulators to promote awareness about BPL and policies that encourage its deployment."

See also, reaction from the Amateur Radio Relay League (ARRL).

See also, story titled "FCC Adopts Broadband Over Powerline NPRM" in TLJ Daily E-Mail Alert No. 836, February 13, 2004. The FCC released the text [38 pages in PDF] of this NPRM on February 23, 2004.

This Report and Order is FCC 04-245 in ET Docket No. 04-37. Anh Wride (at 202 418-0577 or presented this item at the FCC's meeting.

FCC Adopts Report and Order Re 1710-1755 MHz Band

10/14. The Federal Communications Commission (FCC) adopted, but did not release, Seventh Report and Order, taking further action to clear 45 MHz of spectrum in the 1710-1755 MHz band for Advanced Wireless Services (AWS) such as Third Generation (3G) wireless services.

FCC Chairman Michael Powell wrote in a separate statement [PDF] that this report and order "represents the final step in the Commission’s efforts to free valuable spectrum nationwide for third generation (3G) technologies."

The FCC issued a short release describing this item. It states that "The Commission previously allocated the 1710-1755 MHz (1.7 GHz) and 2110-2155 MHz (2.1 GHz) bands for AWS. The 1.7 GHz band was transferred from the Federal Government for private sector use, but Federal operations at certain locations were to remain in this spectrum indefinitely. The U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”), working with the Department of Defense and other Federal agencies, developed a set of proposals to clear this spectrum so that it could be made available for AWS throughout the United States. Today’s action implements NTIA’s plan by making certain non-Federal Government bands available for relocating Federal operations."

Michael GallagherMichael Gallagher (at right), head of the Department of Commerce's National Telecommunications and Information Administration (NTIA) stated in a release that this order "is a critical step for the relocation of existing federal government users, and highlights the importance of the spectrum relocation bill pending in Congress."

See, HR 1320, the "Commercial Spectrum Enhancement Act". The House passed its version on June 11, 2003. See, stories titled "House Subcommittee Holds Hearing On Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 631, March 26, 2003; "House Subcommittee Approves Spectrum Relocation Fund Bill" in TLJ Daily E-Mail Alert No. 641, April 10, 2003; "House Commerce Committee Passes Spectrum Relocation Bill" in TLJ Daily E-Mail Alert No. 653, May 1, 2003; and "House Passes Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 679, June 12, 2003. The Senate Commerce Committee passed its version on June 26, 2003. See, story titled "Senate Commerce Committee Approves Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 689, June 27, 2003.

This report and order is FCC 04-246 in ET Docket No. 00-258 and WT Docket No. 02-8.

FCC Rules ILECs Have No § 251 Unbundling Obligations for FTTC

10/14. The Federal Communications Commission (FCC) adopted, but did not release, an Order on Reconsideration regarding broadband unbundling obligations.

The FCC issued a short release that describes this item. The release states that the order "relieves incumbents from unbundling requirements for fiber-to-the-curb (FTTC) loops, where fiber is extended within 500 feet of a customer's premises."

It elaborates that "The FCC found that FTTC networks can deliver many of the same benefits as FTTC loops. FTTC networks offer enhanced capability for providing advanced services, including the ability to offer voice, multi-channel video, and high-speed data services. The new rules free companies to choose between FTTH or FTTC networks based on marketplace characteristics, rather than disparate regulatory treatment."

The release also states that the order clarifies that incumbent local exchange carriers (ILECs) "are not obligated to build time division multiplexing (TDM) capability into new packet-based networks or into existing packet-based networks that never had TDM capability."

FCC Commissioner Kevin Martin wrote in a separate statement [PDF] that this item states that "our intention was to preserve access to the incumbent LECs' existing network facilities, and to provide access to DS-1 loops only over TDM capable hybrid network facilities and not over packetized network facilities. In the Triennial Review Order, we held that ILECs need not unbundle their packet-based networks, including any packetized transmission path."

Kevin MartinMartin (at left) added that "In particular, we recognize that where ILECs deploy new packet-based networks they nevertheless may need to hand-off a signal to some customers in TDM format in order to be compatible with an end user’s customer premises equipment. The decision makes clear that carriers that choose to deploy new packet-based networks will not be required to unbundle their new packet-based networks regardless of whether they hand off a signal in a TDM format to any such customer."

This order on reconsideration addresses requests from BellSouth and SureWest filed in October of 2003 to reconsider parts of the 2003 Triennial Review Order (TRO).

The FCC released its triennial review order [576 pages in PDF] on August 21, 2003. See, story titled "Summary of FCC Triennial Review Order" in TLJ Daily E-Mail Alert No. 725, August 25, 2003. See also, stories titled "FCC Announces UNE Report and Order" and "FCC Order Offers Broadband Regulatory Relief" in TLJ Daily E-Mail Alert No. 609, February 21, 2003.

The TRO addresses the Section 251 unbundling obligations of ILECs. Unbundled network elements (UNEs) are those portions of telephone networks that the ILECs, such as Verizon, BellSouth, SBC and Qwest, must make available to competing carriers, such as AT&T and MCI WorldCom, seeking to provide telecommunications services. The Telecommunications Act of 1996 provides that ILECs must provide access to certain of their network elements at regulated rates. See, 47 U.S.C. § 251.

The TRO provides that there is no unbundling requirement for fiber to the home (FTTH) loops. On March 2, 2004, the U.S. Court of Appeals (DCCir) issued its opinion [62 pages in PDF] in USTA v. FCC overturning some parts of the TRO. However, it upheld the TRO's FTTH provisions. See, story titled "Appeals Court Overturns Key Provisions of FCC Triennial Review Order" in TLJ Daily E-Mail Alert No. 848, March 3, 2004.

FCC Chairman Michael Powell wrote in a separate statement [PDF] that "By limiting the unbundling obligations of incumbents when they roll out deep fiber networks to residential consumers, we restore the marketplace incentives of carriers to invest in new networks."

FCC Commissioner Kathleen Abernathy also wrote a separate statement [PDF] in support of this item.

FCC Commissioner Michael Copps, who dissented from the TRO's FTTH provisions, also dissented from this order. He also wrote in his separate statement [PDF], without elaboration, that this item does not "bode well for independent providers of VoIP services who don't own or control the physical layer of the network."

FCC Commissioner Jonathan Adelstein wrote a separate statement [PDF], dissenting in part.

This item is FCC 04-248 in CC Docket No. 01-338, CC Docket No. 96-98, and CC Docket No. 98-147.

Washington Tech Calendar
New items are highlighted in red.
Friday, October 15

The House and Senate are in recess until November 16, 2004.

Day two of a three day convention of the American Intellectual Property Law Association (AIPLA). At 8:45 - 11:45 AM there will be three concurrent programs: (1) The FTC's Recommendations to Change the Patent System to Achieve a "Proper Balance" with Competition Policy, (2) Prosecuting the Difficult Patent Application, and (3) The Latest on Trademark, Copyright Fair Use and Open. At 12:15 - 1:45 PM, Jon Dudas, the Director of the U.S. Patent and Trademark Office (USPTO) will give the luncheon address. At 2:00 - 3:30 PM, there will be three concurrent programs: (1) Recent PCT Reform and its Impact on US Patent Strategies, (2) Opinion Writing In View of Unpredictable IP Decisions, and (3) Is Greed Good? Taking Advantage of, and Holding the Line Against, the Merger of Lost Profits and Price Erosion Damages. See, conference web site and schedule [PDF]. Location: Grand Hyatt Washington, 1000 H St., NW.

LOCATION CHANGE. 12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a Congressional seminar titled "Reinventing the FCC for the Digital Age". The speakers will be Tom Lenard (PFF), Randolph May (PFF), James Miller (former head of the Office of Management and Budget and the Federal Trade Commission), Darius Gaskins (former Chairman of the Interstate Commerce Commission), and Susan Ness (former FCC commissioner). See, notice and registration page. Lunch will be served. Location: Room B-369, Rayburn Building.

TIME? Rochelle Dreyfuss (NYU) will give a lecture titled "Protecting the Public Domain of Science under International Law" as part of the Georgetown Law Colloquium on Intellectual Property & Technology Law. For more information, contact Julie Cohen at 202 662-9871 or Jay Thomas at 202 662-9925. Location: Georgetown University Law Center, 600 New Jersey Ave., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the high cost universal support mechanisms for rural carriers and the appropriate rural mechanism to succeed the five year plan adopted in the Rural Task Force Order. See, notice in the Federal Register, September 3, 2004, Vol. 69, No. 171, at Pages 53917 - 53923.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [15 pages in PDF] regarding "issues relating to the presentation of violent programming on television and its impact on children." This NOI is FCC 04-175 in MB Docket No. 04-261. See, story titled "FCC Issues NOI on Violent TV Programming" in TLJ Daily E-Mail Alert No. 950, August 2, 2004. See also, Order [PDF] extending the deadlines.

Saturday, October 16

Day three of a three day convention of the American Intellectual Property Law Association (AIPLA). See, conference web site and schedule [PDF]. Location: Grand Hyatt Washington, 1000 H St., NW.

Monday, October 18

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding "Internet Protocol (IP) Relay and Video Relay Service (VRS), including the appropriate cost recovery methodology for VRS, possible mechanisms to determine which IP Relay and VRS calls are intrastate and which are interstate for purposes of reimbursement, whether IP Rely and VRS should become mandatory TRS services, whether IP Relay and VRS should be required to be offered 7 days a week, 24 hours a day, and whether, when, and how we should apply the speed of answer rule to the provision of VRS." See, notice in the Federal Register, September 1, 2004, Vol. 69, No. 169, at Pages 53382 - 53385. The FCC adopted this NPRM on June 10, 2004, and released it on June 30, 2004. It is FCC 04-134 in CG Docket No. 03-123. Comments are due by October 18, 2004.

Tuesday, October 19

TIME? The U.S. District Court (DC) will hold a status conference in U.S. v. Microsoft, the government antitrust case against Microsoft.. On October 8, 2004, Microsoft, the Department of Justice (DOJ), and various state plaintiffs filed a Joint Status Report on Microsoft's Compliance with the Final Judgments. This case is D.C. No. 98-1232 (CKK), Judge Colleen Kotelly presiding. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Executive Committee will meet. Location: Wiley Rein & Fielding, 1776 K Street, NW.

4:00 PM. The Federal Communications Bar Association's (FCBA) Legislative Committee will host an event titled "Afternoon Chat with Howard Waltzman". Waltzman is the Chief Counsel to the House Commerce Committee's Subcommittee on Telecommunications and the Internet. RSVP to Location: Wiley Rein & Fielding,1776 K St., NW.

Wednesday, October 20

8:00 AM. The Federal Communications Bar Association (FCBA) will host a breakfast. The speaker will be Dan Glickman, the new head of the Motion Picture Association of America (MPAA). Location: Capitol Hilton, 16th & K Streets, NW.

10:00 AM. Jeffrey Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Communications Bureau (WCB), will hold an event titled "briefing for members of the media". RSVP to Mark Wigfield at 202 418-0253. Location: FCC, 445 12th St., SW, Room TW A-402/A-442.

11:00 AM - 12:30 PM. The Cato Institute will host a panel discussion titled "The Next Big Thing in Copyright? The Induce Act and Contributory Liability". Location: Cato, 1000 Massachusetts Ave., NW.

12:15 PM. The New America Foundation (NAF) will host a brown bag lunch. The speaker will be Leo Hindery (Chairman of HL Capital and Former CEO of TCI and AT&T Broadband). RSVP to Jennifer Buntman at 202 986-4901 or Location: NAF, 1630 Connecticut Ave., NW, 7th Floor.

6:00 - 8:15 PM. The DC Bar Association's Computer and Telecommunications Law Section will host a continuing legal education (CLE) program titled "Ethics and the Internet". The speaker will be J.T. Westermeier (Piper Rudnick). See, notice. Prices vary from $80 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

Thursday, October 21

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in In Re AT&T, No. 03-1397. Judges Ginsburg, Sentelle and Randolph will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. Jeffrey Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau will speak on "VOIP and Cable". RSVP to Frank Lloyd 202 434-7309 or Location: 9th Floor, Mintz Levin, 701 Pennsylvania Ave., NW.

4:00 PM. Michael Carrier (Rutgers University Law School) will present a paper titled "Cabining Intellectual Property Through a Property Paradigm" at an event hosted by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host the first part of a two part continuing legal education (CLE) seminar on Homeland Security. Prices vary. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Friday, October 22

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. Harry Martin (President of the FCBA) and Michele Farquhar (President-Elect of the FCBA) will speak on involvement in the FCBA and building a career in communications law. For more information, contact Jason Friedrich at or Pam Slipakoff at Location: Drinker Biddle & Reath, 1500 K Street NW, Suite 1100.

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