Broadband-over-power-lines battle goes to court

WASHINGTON--A dispute that could affect the roll-out of broadband over power lines, which some hope will one day compete with cable and DSL services, went before a federal appeals court on Tuesday, but no immediate resolution occurred.

The U.S. Court of Appeals for the District of Columbia heard arguments from attorneys for the Federal Communications Commission and the American Radio Relay League, which represents amateur radio operators, about FCC rules aimed at allowing BPL services to flourish.

Therein lies the dispute: The FCC says its rules, which date back to 2004, have struck the right balance between encouraging unlicensed BPL deployment and protecting existing licensed devices--including those run by public safety workers, TV broadcasters and amateur radio operators--from harmful interference on those airwaves.

The ARRL, however, contends the FCC's rules are inconsistent with federal law and aren't strict enough to prevent BPL signals from disrupting its members' communications. (The group says it's not just about protecting hobbyists, either: ham radio operators were widely praised as a valuable source of information after Hurricane Katrina downed normal communications channels.)

Specifically, for the first time in decades, the FCC decided against requiring that operations found to cause "harmful interference" be shut down immediately--a stance that ignores the "right of the license holder to be free from interference," Jonathan Frankel, the ARRL's attorney, argued in court Tuesday.

The FCC has also withheld portions studies that would "potentially" show BPL does cause harmful interference to other devices--and ignored reports of tests the ARRL argues offer "substantial" evidence of interference problems, Frankel said.

"We're talking about devices that radiate for football fields in length and all along power lines," Frankel said of the BPL gadgets. "When you drive down the street, (an amateur radio operator's) service is interrupted constantly."

Attorney C. Grey Pash, arguing for the FCC, defended the agency's approach. He said the FCC didn't require the so-called "cease-operations" rule because it didn't find ample evidence that BPL posed real potential for "harmful" interference.

Pash said the studies the FCC relied upon, including one by the U.S. National Telecommunications and Information Administration, found that so long as the FCC restricts the strength of the signals emitted by BPL devices--as it did through its rules--others sharing that spectrum "won't notice a difference" in the quality of their services. As for the ARRL's allegations the FCC scrubbed its reports, Pash said the redacted sections were staff opinions referencing earlier sections of the report, not "a bunch of new information."

The three-judge panel that heard Tuesday's arguments peppered both attorneys with questions but didn't signal how it planned to rule.

BPL: An infant industry

The outcome of the ARRL's appeal could be significant if it prompts revisions in the FCC's rules, as the agency says it has sought to keep potentially innovation-stifling requirements to a minimum.

To be sure, the commercial BPL industry is still in its infancy. According to the United Power Line Council, which represents public utility companies engaged in such projects, there were fewer than a dozen commercial deployments and about two dozen trials as of this July, mainly concentrated on the East Coast and in the Midwest.

The ARRL has always maintained it's not out to kill off BPL services. The group has suggested one solution to its complaints would be for the FCC to confine BPL operators to certain frequencies that are less likely to cause interference with amateur radio operators.

The FCC, for its part, says that's a needless restriction that would inhibit the design of BPL services and make them less efficient, reducing their benefit and raising their costs to the public. But if real-world evidence of harmful interference arises, the regulators have voiced willingness to reconsider their rules.

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