Judge tells FCC to rework powerline broadband regulations

By Eric Bangeman | Published: April 28, 2008 - 09:10PM CT

Despite its glacially slow advance into the US broadband market, the Federal Communications Commission has championed broadband over powerline (BPL) as a "third-pipe" alternative to the DSL/cable duopoly in the US. An appeals court dealt the Commission and BPL backers a blow late last week, siding with ham radio operators by ruling that the FCC erred in its rule-making for the technology.

At issue are a series of tests conducted prior to the FCC's issuing its rules governing BPL deployment. The American Radio Relay League, a national organization of ham radio operators, sued the FCC last October in an attempt to have the rules enacted back in 2004 blocked. The ARRL and other ham radio groups have been consistently critical of BPL, arguing that the technology causes interference on their receivers.

Prior to filing suit, the ARRL had tried to get the FCC to act on its concerns, to no avail. In June 2007, the group sent a letter to the FCC asking that BPL testing by a New York utility be halted due to interference. That request, as well as others, was spurned by the Commission.

The decision handed down by the US Court of Appeals for the District of Columbia holds that the FCC erred during the rulemaking process. In drawing up the regulations governing BPL, the FCC relied on five different studies. The results were made public as required by law, but some portions of the studies were blacked out. The ARRL said that the redacted portions should be made public, while the FCC said they weren't relevant.

In its ruling, the three-judge panel said that federal law required the FCC to make all portions of the studies available, and that the Commission didn't adequately explain how it arrived at its criteria for determining when a BPL signal causes "harmful interference."

The FCC will now have to "make available for notice and comment the unredacted 'technical studies and data that it has employed in reaching [its] decisions,' and shall make them part of the rulemaking record," wrote the judges.

The ARRL applauded the decision. "Now that the Commission has been ordered to do what it should have done in the first place, we look forward to participating in the proceedings on remand, and to helping to craft rules that will provide licensed radio services with the interference protection they are entitled to under law," said ARRL CEO David Sumner in a statement.

Given the snail's pace adoption of BPL, sending the FCC back to the rulemaking drawing board should have little or no impact. In fact, the FCC should be able to adopt the same set of rules once again, as long as the process is fully transparent this time around. The biggest problem is a lack of interest in BPL by utilities and other broadband players. Since Google and Goldman Sachs famously dropped $100 million on Current Communications in mid-2005, high-profile BPL investments and deployments have been few and far between.

Standards-setting body IEEE is developing a standard to govern all aspects of BPL delivery, including data, VoIP, and video, but a May 2006 report by the Government Accountability Office characterized BPL as being in the "trial stage," and not a whole lot has changed since then. At the dawn of 2006, there were only around 6,000 BPL subscribers in the US; that number had grown to 75,000 by the beginning of 2007. Analysts estimate that number will hit 2.5 million by 2011, but that appears questionable given the current slow pace of deployment.