**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | WC Docket No. 06-10          |
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| United Power Line Council's      | ) |                              |
| Petition for Declaratory Ruling  | * |                              |
| Regarding the Classification of  | * |                              |
| Broadband over Power Line        |   |                              |
| Internet Access Service as an    | * |                              |
| Information Service              | * |                              |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted:** November 3, 2006 **Released:** November 7, 2006

By the Commission: Chairman Martin and Commissioner Tate issuing
separate statements; Commissioners Copps and Adelstein concurring and
issuing separate statements; Commissioner McDowell abstaining.

# Introduction

1.  In this Memorandum Opinion and Order (Order), we classify Broadband
    over Power Line (BPL)-enabled Internet access service to be an
    information service under the Communications Act of 1934, as amended
    (Communications Act or Act).[^1] Additionally, we find that the
    transmission component underlying 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." Further, we find 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, but
    that the BPL provider may choose to offer it as such.

2.  In reaching these determinations, we remove regulatory uncertainty
    regarding the classification of this service.[^2] This approach is
    consistent with the framework that the Commission established for
    cable modem service and wireline broadband Internet access service,
    as it establishes a minimal regulatory environment for BPL-enabled
    Internet access service that promotes our goal of ubiquitous
    availability of broadband to all Americans.[^3] This Order also
    furthers the Commission's goal of developing a consistent regulatory
    framework across broadband platforms by regulating like services in
    a similar manner.[^4]

# BACKGROUND

## UPLC's Petition for Declaratory Ruling

3.  On December 23, 2005, UPLC filed a petition for declaratory ruling
    requesting that the Commission find that BPL-enabled Internet access
    service is an information service as defined in the Act.[^5] UPLC
    requests that the Commission remove any uncertainty about whether
    BPL-enabled Internet access service is subject to Title II of the
    Act.[^6] As described in the Petition, BPL is a nascent industry,
    which continues to develop.[^7] In its petition, UPLC argues that
    BPL-enabled Internet access service is like other broadband
    services, including cable modem service and digital subscriber line
    service (DSL), that are classified as information services, and thus
    BPL-enabled Internet access service should be classified as an
    information service.[^8] Specifically, UPLC argues that BPL-enabled
    Internet access service is "an integrated finished service that
    combines computer processing with transport capabilities, like cable
    modem and DSL services."[^9] Additionally, UPLC asserts that
    classifying BPL-enabled Internet access service as an information
    service would serve the public interest because it would remove
    regulatory uncertainty and promote broadband access and
    competition.[^10] The Wireline Competition Bureau issued a public
    notice requesting comment on the petition.[^11]

## Relevant Proceedings

### Prior Commission BPL Proceedings

4.  The Commission has previously addressed certain technical aspects of
    BPL as part of its ongoing proceedings on this technology. In 2003,
    the Commission 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.[^12] 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 the power line.[^13] In the
    *BPL NOI*, the Commission 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.[^14] In 2004, the Commission released a notice of proposed
    rulemaking proposing to amend Part 15 to address Access BPL
    technology.[^15] The Commission subsequently released the *Access
    BPL Order*, which adopted definitions for Access BPL and In-House
    BPL; new operational requirements for Access BPL concerning harmful
    interference; new administrative requirements to identify Access BPL
    installations; and specific measurement guidelines and certification
    requirements to evaluate Access BPL emissions.[^16] The Commission
    has not addressed the question of the regulatory status of
    BPL-enabled Internet access service in these proceedings or
    elsewhere.[^17]

### Prior Commission Classification of Broadband Internet Access Services 

5.  The Commission has addressed the classification of broadband
    Internet access services in two orders: the *Cable Modem Declaratory
    Ruling* and the *Wireline Broadband Internet Access Services Order*.
    The Commission released the *Cable Modem Declaratory Ruling* in
    2002, classifying cable modem service as an interstate information
    service, which includes no separate offering of a telecommunications
    service.[^18] The Commission found that the classification of cable
    modem service depended on the nature of the functions that the end
    user is offered and that cable modem service, in fact, combined "the
    transmission of data with computer processing, information
    provision, and computer interactivity, enabling end users to run a
    variety of applications."[^19] As a part of the classification, the
    Commission determined that the *Computer Inquiry* obligation to
    offer the transmission underlying any information service on a
    common carrier basis did not apply to information services provided
    over cable facilities.[^20] The Supreme Court later upheld, as a
    lawful construction of the Act, the Commission's conclusion that
    cable companies that sell broadband Internet service do not provide
    "telecommunications services" and therefore are exempt from
    mandatory Title II common-carrier regulation.[^21]

6.  On September 23, 2005, the Commission issued the *Wireline Broadband
    Internet Access Services Order*, which, among other things,
    established a new regulatory framework for broadband Internet access
    services offered by wireline facilities-based providers.[^22] The
    Commission acted to further its goal of "developing a consistent
    regulatory framework across platforms by regulating like services in
    a similar functional manner."[^23] There, the Commission found that
    wireline broadband Internet access is an information service because
    it offers end users "the capability for 'generating, acquiring,
    storing, transforming, processing, retrieving, utilizing, or making
    available information via telecommunications.'"[^24] The Commission
    also determined that neither the Communications Act nor relevant
    precedent mandated that broadband transmission be a
    telecommunications service when provided to an ISP, but the provider
    may choose to offer it as such.[^25] The Commission further
    determined that the use of the transmission component of wireline
    broadband Internet access service as part of a facilities-based
    provider's offering of that service to end users using its own
    transmission facilities is "telecommunications" and not a
    "telecommunications service" under the Act.[^26] Additionally, the
    Commission noted that the broadband Internet access market had
    several emerging platforms and providers in most areas of the
    country.[^27] The Commission also eliminated the *Computer Inquiry*
    requirements applicable to wireline broadband Internet access
    services offered by facilities-based providers.[^28]

# DISCUSSION

7.  For the reasons discussed below, we classify BPL-enabled Internet
    access service to be an information service under the Act. We also
    conclude that the transmission component underlying 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." Further, we
    find that neither the Communications Act nor relevant precedent
    mandates that broadband transmission be a "telecommunications
    service" when provided to an ISP as a wholesale input for the ISP's
    own BPL‑enabled Internet access service offering, but that the BPL
    provider may choose to offer it as such. Additionally, we deny
    requests from commenters either to condition the information service
    classification or to place additional requirements on BPL-enabled
    Internet access services.

## BPL-enabled Internet Access Service Is an Information Service

8.  We find that BPL-enabled Internet access service is an information
    service.[^29] This classification is consistent with the
    Commission's classifications of cable modem service, as affirmed by
    the Supreme Court, and of broadband Internet access services offered
    by wireline facilities-based providers.[^30]

9.  The Act defines "information service" as:

> the offering of a capability for generating, acquiring, storing,
> transforming, processing, retrieving, utilizing, or making available
> information via telecommunications, and includes electronic
> publishing, but does not include any use of any such capability for
> the management, control, or operation of a telecommunications system
> or the management of a telecommunications service.[^31]

Some commenters assert that BPL-enabled Internet access service, like
cable modem and DSL services, meets this statutory definition.[^32]
Specifically, the record reveals 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.'"[^33] We agree that these characteristics of
BPL‑enabled Internet access service are similar to the characteristics
that the Commission relied upon in classifying cable modem service and
wireline broadband Internet access service as "information
services."[^34] Applying this precedent and the statutory "information
service" definition, we conclude that BPL-enabled Internet access
service is an information service.[^35] Specifically, we find that
BPL-enabled Internet access service is an information service because it
offers a single, integrated service (*i.e.*, Internet access) to end
users, in that BPL-enabled Internet access service 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).[^36] These applications encompass
the capability for "generating, storing, transforming, processing,
retrieving, utilizing, or making available information via
telecommunications," and taken together constitute an information
service as defined by the Act.[^37]

10. Further, we find that classifying BPL-enabled Internet access
    service as an information service furthers the goals of sections 7
    and 230(b)(2) of the Communications Act, and section 706 of the
    Telecommunications Act of 1996 (1996 Act).[^38] Through this
    classification, we are encouraging the deployment of broadband
    Internet access services.[^39] Additionally, we believe that
    BPL-enabled Internet access service can provide an important
    homeland security function by creating redundancy in our
    communications infrastructure and can be used to build smart grids
    to monitor the provision of electrical service.[^40] As the
    Commission has noted previously with the classification of wireline
    broadband Internet access services, we similarly find that our
    actions in this Order will not affect the government's
    implementation or enforcement of the Uniting and Strengthening
    America by Providing Appropriate Tools Required to Intercept or
    Obstruct Terrorism Act of 2001 (USA PATRIOT Act),[^41] or the
    Commission's rules implementing the National Security Emergency
    Preparedness (NSEP) Telecommunications Service Priority (TSP)
    System.[^42]

11. Having concluded that BPL-enabled Internet access service is an
    information service, we also find that the service is an interstate
    service to the same extent as cable modem service and wireline
    broadband Internet access service.[^43]

## The Transmission Component of BPL-enabled Internet Access Service Is "Telecommunications" and Not a "Telecommunications Service" 

12. UPLC requests that the Commission remove any uncertainty as to
    whether BPL-enabled Internet access service is subject to regulation
    under Title II of the Act.[^44] A critical aspect of removing this
    uncertainty is the statutory classification of the transmission
    component underlying that service.[^45] We find that this
    transmission component 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 Act. We also find that neither the Communications Act nor
    relevant precedent mandates that broadband transmission be a
    "telecommunications service" when provided to an ISP as a wholesale
    input for the ISP's own BPL-enabled Internet access service
    offering, but that the BPL provider may choose to offer it as such.

13. The Act defines both "telecommunications" and a "telecommunications
    service," and the Commission has already recognized that "\[a\]ll
    information services require the use of telecommunications to
    connect customers to the computers or other processors that are
    capable of generating, storing, or manipulating information."[^46]
    The Commission has also determined that the transmission of
    information may constitute "telecommunications," but that it is not
    necessarily a "telecommunications service."[^47] UPLC asserts that
    BPL-enabled Internet access service includes "telecommunications"
    because it is "an integrated finished service that combines computer
    processing with transport capabilities, like cable modem and DSL
    services."[^48]

14. We agree that the transmission underlying BPL-enabled Internet
    access is "telecommunications" because it provides "transmission,
    between or among points specified by the user, of information of the
    user's choosing, without change in the form or content of the
    information as sent and received."[^49] BPL systems share technical
    similarities with DSL and cable modem, in that BPL works by
    amplifying a digital signal over the electrical current on power
    lines similar to the way that DSL works by amplifying a digital
    signal over the voice signal on telephone lines.[^50] We conclude,
    consistent with the Commission's finding in the *Wireline Broadband
    Internet Access Services Order*, that the use of this
    telecommunications transmission component as part of a
    facilities-based provider's offering of BPL-enabled Internet access
    service to end users using its own transmission facilities is not a
    "telecommunications service" because it is part and parcel of the
    Internet access service's information service capabilities.[^51]
    Specifically, we find that 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 --
    Internet access service and a distinct transmission service.

15. Additionally, if a BPL provider chooses to offer the
    telecommunications transmission component as a telecommunications
    service, then it is a common carrier service subject to Title
    II.[^52] However, we find nothing in the Communications Act or our
    precedent that compels a facilities-based provider to offer the
    transmission component of BPL-enabled Internet access service as a
    telecommunications service. Additionally, we decline to mandate,
    through our Title I ancillary jurisdiction, that the transmission
    component of BPL-enabled Internet access service provided as a
    wholesale input to ISPs, including affiliates, be offered as a
    telecommunications service.[^53] Further, we make clear that no
    aspect of the *Computer Inquiry* regime applies to the provision of
    BPL-enabled Internet access service. In particular, 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.[^54] We believe, as the Commission
    explained in the *Cable Modem Declaratory Ruling* in reference to
    cable modem service, that subjecting BPL-enabled Internet access
    service providers to these obligations would disserve the goals of
    section 706 of the 1996 Act.[^55]

## Other Issues Raised by Commenters

16. We conclude that the other concerns raised by commenters are outside
    the scope of this proceeding. Some commenters request that the
    Commission either condition the classification of BPL‑enabled
    Internet access service or place additional requirements on
    BPL-enabled Internet access service. Specifically, these commenters
    raise concerns regarding interference and pole attachment
    access.[^56] While these issues are important, we find that they are
    outside the scope of this proceeding and are better addressed in
    other proceedings pending before the Commission.[^57] In particular,
    we note that in the *Consumer Protection in the Broadband Era
    Notice* the Commission seeks comment on whether to impose additional
    obligations on all providers of broadband Internet access service,
    including BPL‑enabled Internet access service, under the
    Commission's Title I ancillary jurisdiction.[^58] Further, we find
    that resolving the narrow classification issues of BPL-enabled
    Internet access service immediately will promote the deployment of
    BPL technology and the proliferation of this nascent service.[^59]
    Perhaps more importantly, we find that saddling this service with
    conditions that do not apply to other competing forms of broadband
    Internet access services would create a regulatory disparity
    antithetical to our creation of a level playing field for all modes
    of this service.

# ORDERING CLAUSE

17. Accordingly, IT IS ORDERED, that pursuant to sections 1-4, 201(b),
    and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 151-54, 201(b), and 303(r), section 706 of the Telecommunications
    Act of 1996, 47 U.S.C. § 157 nt, and section 1.2 of the Commission's
    rules, 47 C.F.R. § 1.2, that UPLC's Petition for Declaratory Ruling
    IS GRANTED, as described herein.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

APPENDIX

LIST OF COMMENTERS

**Comments Filed in Response to the Public Notice in WC Docket No.
06-10**

  ------------------------------------------ --------------------------------
  **[Comments]{.underline}**                 **[Abbreviation]{.underline}**

  COMPTEL                                    COMPTEL

  Duke Energy Corporation and Cinergy        Duke/Cinergy
  Broadband, LLC                             

  First Communications, LLC                  FirstCom

  Florida Cable & Telecommunications         Joint Cable Operators
  Association; Cable Television Association  
  of Georgia; Cable Telecommunications       
  Association of Maryland, Delaware, and the 
  District of Columbia; California Cable &   
  Telecommunications Association; South      
  Carolina Cable Television Association;     
  Alabama Cable Telecommunications           
  Association                                

  New Jersey Division of the Ratepayer       NJ Ratepayer
  Advocate                                   

  NextG Networks, Inc.                       NextG

  The National Telecommunications            NTCA
  Cooperative Association                    

  Panasonic Corporation of North America     Panasonic

  The Pennsylvania Public Utility Commission PaPUC

  Progress Energy, Inc.                      Progress Energy

  San Diego Gas & Electric Company           SDG&E

  The Telecommunications Industry            TIA
  Association                                

  The United Power Line Council              UPLC

  Virtual Hipster Corporation                Virtual Hipster
  ------------------------------------------ --------------------------------

**Reply Comments Filed in Response to the Public Notice in WC Docket No.
06-10**

  ------------------------------------------ --------------------------------
  **[Reply Comments]{.underline}**           **[Abbreviation]{.underline}**

  CURRENT Communications Group, LLC          CURRENT

  Duke Energy Corporation                    Duke

  Florida Cable & Telecommunications         Joint Cable Operators
  Association; Cable Television Association  
  of Georgia; Cable Telecommunications       
  Association of Maryland, Delaware, and the 
  District of Columbia; California Cable &   
  Telecommunications Association; South      
  Carolina Cable Television Association;     
  Alabama Cable Telecommunications           
  Association                                

  The National Telecommunications            NTCA
  Cooperative Association                    

  The Pennsylvania Public Utility Commission PaPUC

  The United Power Line Council              UPLC
  ------------------------------------------ --------------------------------

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

*Re: 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

With today's order the Commission takes another important step to
promote the deployment of broadband infrastructure. Specifically, by
finding that broadband over power line (BPL) Internet access services
are information services, the Commission provides the regulatory
certainty necessary to foster competition between different broadband
platform providers. I believe that it is the Commission's responsibility
to help ensure technological and competitive neutrality in
communications markets. Accordingly, I believe that all providers of the
same service must be treated in the same manner regardless of the
technology that they employ. I am therefore pleased that the Commission
has recognized that Internet access services provided over broadband
power lines, like those provided over cable plant and wireline
facilities, are information services.

The Commission's broadband statistics show that subscribers to BPL
Internet access services, although few in number overall, increased by
nearly 200% in 2005. These services hold great promise for consumers. It
is, therefore, critical that the Commission take appropriate action to
foster their development. Just a few months ago, we took action to
clarify our technical rules pertaining to BPL service. And, today, we
clarify their legal status. It is my hope that these actions will
promote the growth and competitiveness of this service. By encouraging
the development of new technologies, such as BPL, we can best achieve
the President's goal of universal broadband by the end of 2007.

**CONCURRING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Re: 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

I concur in today's decision for substantially the same reasons I
concurred in our 2005 Order reclassifying DSL service as an information
service. As I stated then and continue to believe today, consigning
broadband services to an indeterminate Title I regulatory limbo is no
substitute for a genuine national broadband strategy. Just relegating
something to Title I doesn't provide the kind of certainty that either
business or consumers are entitled to if broadband over power line is
going to be the success we want it to be. And reclassification by itself
gets us no closer to the kind of high speed broadband infrastructure
this nation needs to be competitive in world markets and to expand
economic and social opportunity here at home.

But as I have said before, I understand that when it comes to regulatory
classification questions, the handwriting has long been on the wall. So,
for the foreseeable future, new broadband services are destined to be
classified as Title I services. This is not the world I would have
chosen, but it is the world in which we live. I hope it is a world
wherein broadband over power line can find a way to realize its
potential and maybe even provide that needed "other pipe" for high-speed
broadband deployment.

Even though there has been no real doubt for some time that this
Commission would one day declare BPL an information service -- given our
decisions on DSL and cable modems and the Supreme Court's *Brand X*
ruling -- we are nowhere near finished defining what being an
information service ***actually*** ***means***. Yes, we have clarified
some questions about E911 and CALEA and decided (unwisely, in my view)
that broadband providers need not contribute to universal service. But
we still haven't addressed important questions about such things as
privacy, disabilities access and the future of the Internet. Nor does
our decision today provide any certainty on difficult questions raised
by BPL as to cross-subsidization and pole attachments -- issues that
sound pretty dry and technical -- but issues that can come back to bite
both consumers paying bills and entrepreneurs trying to devise business
plans.

We seem to proceed on the happy presumption that if providers are free
from legacy Title II regulation they will magically devote their
attention and capital to building broadband infrastructure. The results?
Well, after several years of Title I reclassification, not many. As
other nations race at warp speed into the digital future, this one plods
along at turtle velocity. While I dearly hope that BPL providers make
real inroads into the cable-telephone broadband duopoly that we have in
this country, I really don't think our international standing in
broadband is going to improve until this nation develops a real
honest-to-goodness broadband strategy, just as every other
industrialized nation has done. Consumers want -- and consumers deserve
-- some real competition in this critical market. But avoiding the tough
regulatory questions and merely renaming things is not going to usher in
that happy result. We are not providing the kind of certainty that
business requires, nor any assurance to consumers about what rights they
have in the new world of high speed which we hope some day to inhabit.
The issues I am talking about today don't go away just because we call
something by a different name. I would much rather see this Commission
spending more time addressing real-world broadband needs and less time
parsing regulatory language without filling in the blanks.

As for our BPL providers, I commend them on their efforts to bring a new
broadband pipe into our homes and businesses -- particularly in
difficult-to-reach places -- and I look forward to working with them to
encourage an environment where they can truly realize their dreams.

**CONCURRING STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: 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

In this Order, the Commission clarifies that the regulatory framework
for Broadband-over-Power Line (BPL)-enabled Internet access service
should be consistent with the framework established for broadband
Internet access services provided over cable modem and wireline
broadband facilities. I support this Order because it is consistent with
our broader efforts to treat similar services in a similar manner across
technology platforms.

In BPL-enabled Internet access, we have a relative newcomer to the
Internet access service market but an exciting technology that has the
potential to be a new broadband pipe into the home.[^60] Fostering BPL
services is an important goal because we continue to see a residential
broadband market in which, according to FCC statistics, telephone and
cable operators control a nearly 98 percent share, with many consumers
lacking any meaningful choice of providers. So, if we are to give our
communities the communications tools to compete on the global economic
stage, it is critical that we take steps to promote much-needed
competition in the provision of broadband services.

The legal approach we take here may not be my preferred option but I
concur in today's decision for the same reasons that I concurred in our
decision last year to reclassify wireline broadband Internet access
services. [^61] As I made clear at the time we adopted the *Wireline
Broadband Internet Access Order*, the reclassification approach raises
some difficult questions about the legal and policy framework for
broadband services. My underlying concern with the reclassification
approach has always been that it takes the Commission outside the ambit
of those core legal protections and grounding afforded by Congress. Yet,
I have been willing to move forward because we are acting in a manner
consistent with the Supreme Court's guidance in the *Brand X* decision,
and this Order, in turn, will give us an opportunity to adopt a
consistent approach for cable, wireline, and power line broadband
services.

Even as we move forward with this Order today, it is worth mentioning
some of the important issues that we shouldn't loose sight of: chief
among those is the protection of consumers. Indeed, my support for this
approach last year was conditioned on the Commission's decision to use
its Title I authority to address important consumer protection and other
concerns that continue to be relevant in the broadband age. I premised
my support for the *Wireline Broadband Internet Access Order* on our
decision to adopt a concurrent and important Notice of Proposed
Rulemaking (*Broadband Consumer Protection Notice*) that sought comment
on how we can ensure that we continue to meet our consumer protection
obligations in the Act. It's now been more than a year since we opened
that inquiry, so it's more important than ever that we make this
proceeding a priority.

Consumers must be at the top of our list, not the bottom, as we move
into the broadband era. Our experience with the widespread and
unauthorized proliferation of consumer telephone call records has been a
sharp reminder that this Commission has an obligation to ensure that
consumers' privacy expectations are met. But that privacy concern is not
limited to the narrowband world. Consumers don't care whether their
sensitive information is transferred by copper wire, fiber optic cable,
or over a power line connection. They merely want us to implement and
enforce the legal protections afforded by Congress. We should act
immediately to make sure that we have adequate safeguards in place to
protect the consumers' sensitive information.

We also need to advance the discussion of other sensitive issues, like
our Truth-in-Billing rules, access for persons with disabilities, and
the preservation and advancement of universal service. Universal service
is a particularly important issue because the Commission has a statutory
obligation to ensure the sound footing of our federal programs that
ensure access for school, libraries, low income consumers, and hard to
reach areas. Last year, when the Commission adopted the *Wireline
Broadband Internet Access* Order, the Commission also adopted a
transitional plan to ensure the stability of universal service
contributions while it considered the broader question of whether
facilities-based providers of broadband services should be required to
contribute. We've had more than a year since we adopted the *Broadband
Consumer Protection Notice* and the transitional plan for universal
service, so it is certainly time for the Commission to move forward
promptly to address these issues.

On another issue, I appreciate the willingness of Chairman Martin and my
colleagues to work with me to ensure that this Order does not
unnecessarily limit states' ability to address important issues related
to the oversight of BPL. I know that it was important to the BPL
industry and my colleagues to address the classification of BPL, so I am
glad that we were able to resolve these issues collaboratively.

We would all like to see the injection of a new player in the broadband
market and to reap the benefits that increased competition will bring to
consumers. So, now that we have removed any question about the
regulatory classification of BPL services, we will all watch with
anticipation for BPL's continued growth. For all these reasons, I concur
in today's Order.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

*Re: 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

Along with my colleagues, I have had the opportunity to review BPL
demonstrations both in Keller, Texas, and, locally, in Potomac,
Maryland. The possibilities created by broadband over power line (BPL)
technology are truly amazing. Imagine being able to plug into high-speed
Internet wherever there's an electrical outlet. The presence of another
broadband platform could help to bolster competition and, hopefully,
lower prices for consumers, especially in rural communities. Plus, the
presence of an additional data network would help serve an important
homeland security function, adding redundancy to our critical
infrastructure -- this is the potential of BPL, and it is exciting.

This item seeks to eliminate some of the regulatory uncertainty
regarding BPL-enabled Internet access service by classifying it as an
"information service." In doing so, we remove significant regulatory
uncertainty and place this service on a level playing field with both
DSL and cable modem service, both already classified as information
services. This is consistent with the Commission's prior actions, and
also succeeds in pursuing our objectives while applying only a light
regulatory touch. For these reasons, I support this item.

[^1]: 47 U.S.C. §§ 151 *et seq.*

[^2]: Commission rule 1.2 provides the Commission with the authority to
    issue declaratory rulings to remove an uncertainty. *See* 47 C.F.R.
    § 1.2; *see also* 5 U.S.C. § 554(e) (stating that an agency, "in its
    sound discretion, may issue a declaratory order to . . . remove
    uncertainty").

[^3]: *See* 47 U.S.C. § 157 nt; *Inquiry Concerning High-Speed Access to
    the Internet Over Cable and Other Facilities; Internet Over Cable
    Declaratory Ruling; Appropriate Regulatory Treatment for Broadband
    Access to the Internet Over Cable Facilities*, GN Docket No. 00-185
    & CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed
    Rulemaking, 17 FCC Rcd 4798, 4801, para. 4 (2002) (*Cable Modem
    Declaratory Ruling*), *aff'd*, *Nat'l Cable & Telecomms. Ass'n v.
    Brand X Internet Services*, 125 S. Ct. 2688 (2005) (*NCTA v. Brand
    X*); *Appropriate Framework for Broadband Access to the Internet
    over Wireline Facilities; Universal Service Obligations of Broadband
    Providers; Review of Regulatory Requirements for Incumbent LEC
    Broadband Telecommunications Services; Computer III Further Remand
    Proceedings: Bell Operating Company Provision of Enhanced Services;
    1998 Biennial Regulatory Review -- Review of Computer III and ONA
    Safeguards and Requirements; Conditional Petition of the Verizon
    Telephone Companies for Forbearance Under 47 U.S.C. § 160(c) with
    Regard to Broadband Services Provided via Fiber to the Premises;
    Petition of the Verizon Telephone Companies for Declaratory Ruling
    or, Alternatively, for Interim Waiver with Regard to Broadband
    Services Provided Via Fiber to the Premises*; *Consumer Protection
    in the Broadband Era*, CC Docket Nos. 02-33, 01-337, 95-20, and
    98-10 & WC Docket Nos. 04-242 and 05-271, Report and Order and
    Notice of Proposed Rulemaking, 20 FCC Rcd 14853, 14855, para. 1
    (2005) (*Wireline Broadband Internet Access Services Order* or
    *Consumer Protection in the Broadband Era Notice*), *petitions for
    review pending*, *Time Warner Telecom v. FCC*, No. 05-4769 (and
    consolidated cases) (3rd Cir. filed Oct. 26, 2005).

[^4]: *See Wireline Broadband Internet Access Services Order*, 20 FCC
    Rcd at 14862, para. 11 n.30 (stating that while the Commission was
    not addressing classification issues of other non-wireline broadband
    Internet access services in the *Wireline Broadband Internet Access
    Services Order*, it will act consistent with the analysis and
    conclusions reached therein).

[^5]: Petition of the United Power Line Council for a Declaratory Ruling
    Regarding the Classification of Broadband over Power Line Internet
    Access Service as an Information Service at 1 (filed Dec. 23, 2005)
    (UPLC Petition or Petition); *see also* 47 U.S.C. § 153(20)
    (defining information service). UPLC is an "alliance of utilities
    and their technology and service provider partners to develop BPL
    solutions in North America." UPLC Petition at 2. UPLC asserts that
    approximately 70 companies are members of UPLC and that practically
    every electric utility and technology company that is engaged in the
    deployment of BPL is a member. *See* UPLC Comments at 2.

[^6]: *See* UPLC Petition at 1.

[^7]: *See id.* at 2.

[^8]: *See id.* at 3-5.

[^9]: *Id.* at 3.

[^10]: *See id.* at 5-8.

[^11]: *Pleading Cycle Established for Comments on 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, Public Notice, DA
    06-49 (WCB rel. Jan. 11, 2006). A list of commenters and reply
    commenters is contained in the Appendix to this Order.

[^12]: *Inquiry Regarding Carrier Current Systems, including Broadband
    over Power Line Systems*, ET Docket No. 03-104, Notice of Inquiry,
    18 FCC Rcd 8498 (2003) (*BPL NOI*). Part 15 of the Commission's
    rules sets forth regulation under which devices that generate radio
    frequency (RF) energy may be operated without an individual license.
    *See* 47 C.F.R. Part 15.

[^13]: *See BPL NOI*, 18 FCC Rcd at 8498, para. 1.

[^14]: *See id.* at 8499, para. 3.

[^15]: *Carrier Current Systems, including Broadband over Power Line
    Systems; Amendment of Part 15 Regarding New Requirements and
    Measurement Guidelines for Access Broadband over Power Lines
    Systems*, ET Docket Nos. 03-104 and 04-37, Notice of Proposed
    Rulemaking, 19 FCC Rcd 3335 (2004).

[^16]: *Amendment of Part 15 Regarding New Requirements and Measurement
    Guidelines for Access Broadband over Power Line Systems; Carrier
    Current Systems, including Broadband over Power Line Systems*, ET
    Docket No. 04-37 and 03-104, Report and Order, 19 FCC Rcd 21265
    (2004) (*Access BPL Order*). In response to various petitions for
    reconsideration to the *Access BPL Order*, the Commission generally
    affirmed its order and further amended Part 15 of the Commission's
    rules regarding the unlicensed operation of Access BPL. *Amendment
    of Part 15 Regarding New Requirements and Measurement Guidelines for
    Access Broadband over Power Line Systems; Carrier Current Systems,
    including Broadband over Power Line Systems*, ET Docket Nos. 04-37
    and 03-104, Memorandum Opinion and Order, FCC 06-113 (rel. Aug. 7,
    2006).

[^17]: The Commission, however, has sought comment more broadly on
    various consumer protection issues to be addressed in the broadband
    era. *See Consumer Protection in the Broadband Era Notice*, 20 FCC
    Rcd at 14929-35, paras. 146-59 (seeking comment on consumer
    protection needs for all providers of broadband Internet access
    services regardless of the underlying technology).

[^18]: *See Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4802, para.
    7.

[^19]: *Id.* at 4822, para. 38.

[^20]: *See id.* at 4825-26, paras. 44-46.

[^21]: *See NCTA v. Brand X*, 125 S. Ct. at 2695, 2702-10.

[^22]: *See generally Wireline Broadband Internet Access Services
    Order*, 20 FCC Rcd 14853.

[^23]: *Id.* at 14855, para. 1.

[^24]: *Id.* at 14863, para. 14 (quoting 47 U.S.C. § 153(20)).

[^25]: *See id.* at 14909-10, para. 103.

[^26]: *See id.* at 14910-11, para. 104.

[^27]: *See id.* at 14856, para. 3.

[^28]: *See id.* at 14857, 14872-98, paras. 4, 32-85.

[^29]: *See* UPLC Petition at 1 (requesting that the Commission find
    that BPL-enabled Internet access service is an information service).

[^30]: *See* *Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4820-24,
    paras. 34-41; *NCTA v. Brand X*, 125 S. Ct. at 2695, 2702-10;
    *Wireline Broadband Internet Access Services Order*, 20 FCC Rcd at
    14862-65, paras. 12-17.

[^31]: 47 U.S.C. § 153(20). The Act also defines "telecommunications
    service." *See* 47 U.S.C. § 153(46) (defining "telecommunications
    service" as "the offering of telecommunications for a fee directly
    to the public, or to such classes of users as to be effectively
    available directly to the public, regardless of the facilities
    used"); *see also* 47 U.S.C. § 153(43) (defining
    "telecommunications" as "the transmission, between or among points
    specified by the user, of information of the user's choosing,
    without change in the form or content of the information as sent and
    received").

[^32]: *See, e.g.*, UPLC Petition at 3; SDG&E Comments at 2-3 (arguing
    that BPL-enabled Internet access service is like cable modem and DSL
    service); TIA Comments at 3 (noting that BPL services is
    "functionally and technically comparable to cable modem and wireline
    broadband Internet access services"); UPLC Comments at 14 (stating
    that BPL-enabled Internet access service is similar to cable modem
    service and DSL service).

[^33]: *See, e.g.*, UPLC Petition at 4 (citing 47 U.S.C. § 153(20));
    FirstCom Comments at 4-5 (comparing BPL-enabled Internet access
    service to cable modem and wireline broadband Internet access
    services); Progress Energy Comments at 2-3 (contending that
    BPL-enabled Internet access service should receive the same
    classification as cable modem and wireline broadband Internet access
    services); SDG&E Comments at 2 (stating that BPL-enabled Internet
    access service is the functional equivalent to cable modem and
    wireline broadband Internet access services); TIA Comments at 3
    (noting that cable modem and wireline broadband Internet access
    services are functionally and technically comparable to BPL-enabled
    Internet access service); CURRENT Reply at 2 (relying on the *Brand
    X* decision and the *Wireline Broadband Internet Access Services
    Order* to reach a similar result for classifying BPL-enabled
    Internet access service); *see also infra* Section B for a
    discussion of the "via telecommunications" component of the
    information service definition.

[^34]: *See Wireline Broadband Internet Access Services Order*, 20 FCC
    Rcd at 14860, para. 9 (finding that wireline broadband Internet
    access service uses wireline facilities to provide Internet access
    capabilities); *id.* at 14862-65, paras. 12-17 (finding that the
    capabilities of wireline broadband Internet access service provide
    more than pure transmission without a change in form or content of
    the information, and that there is no reason to distinguish between
    wireline broadband Internet access services offered via a
    self-provided transmission component or via a transmission facility
    owned by another party); *Cable Modem Declaratory Ruling*, 17 FCC
    Rcd at 4822, para. 38 (concluding that cable modem service is an
    information service because it combines the transmission of data
    with computer processing, information provision, and computer
    interactivity, enabling end users to run a variety of applications).

[^35]: We emphasize that in finding BPL-enabled Internet access service
    to be an information service, we do not reach the issue of how to
    classify BPL itself or other Internet-based services that electric
    utilities may offer. *See, e.g.*, Current Reply at 2 (noting that
    the petition does not seek clarification on the regulatory
    classification of "BPL"). However, we do address below the
    regulatory flexibility that a provider has in offering the
    transmission component of BPL-enabled Internet access service. *See
    infra* Section B. Directing our focus to the broadband Internet
    access services raised in the Petition without prejudging other
    offerings over the BPL platform parallels the Commission's approach
    for classifying services provided over cable systems and other
    technologies. *See, e.g.*, *Cable Modem Declaratory Ruling*, 17 FCC
    Rcd at 4819, para. 31 n.129 (determining at that time not to
    consider other Internet-based services that cable operators may
    offer, such as service on virtual private networks). Accordingly,
    our decision here does not address issues such as those raised by
    commenters regarding the overall ability of BPL providers to offer
    services pursuant to Title II. *See, e.g.*, COMPTEL Comments at 9-10
    (arguing that if BPL is classified as an information service, BPL
    providers will lose compulsory interconnection rights under section
    251(a)(1)).

[^36]: *See Wireline Broadband Internet Access Services Order*, 20 FCC
    Rcd at 14863, para. 14.

[^37]: *Id.* at 14863-64, paras. 14-15.

[^38]: *See* 47 U.S.C. § 157 (stating that it is the policy of the
    United States "to encourage the provision of new technologies and
    services to the public"); 47 U.S.C. § 230(b)(2) (stating that it is
    the policy of the United States "to preserve the vibrant and
    competitive free market that presently exists for the Internet"); 47
    U.S.C. § 157 nt (directing that the Commission shall encourage the
    deployment of advanced telecommunications capability to all
    Americans); *see also* UPLC Comments at 9-10.

[^39]: Many of the commenters either are actively engaged in developing
    BPL systems or are exploring BPL technologies. *See, e.g.*,
    Duke/Cinergy Comments at 1-2 (asserting that both Duke Energy
    Corporation and Cinergy Broadband, LLC are developing BPL
    technologies); SDG&E Comments at 1 (stating that San Diego Gas &
    Electric Company is exploring whether to develop BPL technology);
    UPLC Comments at 4 (stating that over 40 trial deployments of BPL
    service are underway).

[^40]: *See, e.g.*, UPLC Petition at 6 (asserting that BPL-enabled
    Internet access service furthers public safety and homeland security
    goals); Duke/Cinergy Comments at 3 (same); SDG&E Comments at 4
    (same).

[^41]: P.L. No. 107-56, 115 Stat. 272 (2001) (codified in scattered
    sections of 18 U.S.C., 47 U.S.C., 50 U.S.C.).

[^42]: 47 C.F.R. Part 64, App. A. *See Wireline Broadband Internet
    Access Services Order*, 20 FCC Rcd at 14917-18, paras. 115-18. We
    also disagree with any suggestion that our decision here will
    adversely affect law enforcement's ability to conduct surveillance
    on users of BPL services. *See, e.g.*, COMPTEL Comments at 4-5. In
    the *CALEA Order*, the Commission found that providers of
    facilities-based broadband Internet access service, including
    broadband access via power line, among other services, are subject
    to CALEA. *See Communications Assistance for Law Enforcement Act and
    Broadband Access and Services*, ET Docket No. 04-295 & RM-10865,
    First Report and Order and Further Notice of Proposed Rulemaking, 20
    FCC Rcd 14989, 15001, para. 24 (2005) (*CALEA Order*), *aff'd*,
    *American Council on Educ*. v*. FCC*, 451 F.3d 226 (D.C. Cir. 2006).
    As the Commission explained, providers of facilities-based broadband
    Internet access service satisfy the CALEA definition of
    "telecommunications carrier" even if the service they provide has
    been classified as an information service under the Communications
    Act. *See id*. at 15001, para. 23 (2005) (finding that
    "\[d\]ecisions about the applicability of CALEA must be based on
    CALEA's definitions alone," and that the "classification of a
    service provider as a telecommunications carrier under CALEA's
    Substantial Replacement Provision *does not limit* the Commission's
    options for classifying that provider or service under the
    Communications Act") (emphasis in original).

[^43]: *Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4832, para. 59
    (using the end-to-end analysis to determine that cable modem service
    is jurisdictionally interstate); *Wireline Broadband Internet Access
    Services Order*, 20 FCC Rcd 14853; *see also GTE Tel. Operating
    Cos.*, Memorandum Opinion and Order, 13 FCC Rcd 22466 (1998)
    (finding GTE's ADSL service to be properly tariffed as an interstate
    service), *recon. denied*, 17 FCC Rcd 27409 (1999).

[^44]: *See* UPLC Petition at 1.

[^45]: As the Commission explained in the *Wireline Broadband Internet
    Access Services Order*, classifying the transmission component is
    essential to determine whether provision of a service is subject to
    Title II regulation. There, the Commission 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. Conversely, if it is not, then providers of that
    transmission component are not subject to Title II requirements
    except to the extent that the Commission imposes such obligations
    pursuant to the Commission's ancillary jurisdiction under Title I.
    *See Wireline Broadband Internet Access Services Order*, 20 FCC Rcd
    at 14909, para. 102.

[^46]: *See supra* note Error: Reference source not found;
    *Implementation of the Non-Accounting Safeguards of Section 271 and
    272 of the Communications Act of 1934, as amended*, CC Docket No.
    96-149, Order on Remand, 16 FCC Rcd 9751, 9770, para. 36 (2001).

[^47]: *See Federal-State Joint Board on Universal Service*, CC Docket
    No. 96-45, Report and Order, 12 FCC Rcd 8776, 9179-81, paras. 788-90
    (1997) (finding that information services are not inherently
    telecommunications services simply because they are offered via
    telecommunications).

[^48]: UPLC Petition at 3; *see, e.g.*, FirstCom Comments at 9 (arguing
    that to protect the reliability of the power networks BPL-enabled
    services should not be required to offer transmission capacity
    separately to others); UPLC Comments at 6 (contending that
    BPL-enabled Internet access service is a finished service that
    combines transmission and information processing inextricably); Duke
    Reply at 3 (requesting that the Commission find that BPL-enabled
    Internet access service does not have a separate transmission
    component and that neither electric utilities nor BPL operators
    should be required to offer one); UPLC Reply at 7 (stating that no
    commenters challenge the statement that BPL-enabled Internet access
    service is a "finished service that inextricably intertwines data
    transport and information processing capabilities"). *But see,
    e.g.*, COMPTEL Comments at 8-9 (arguing that UPLC asserts that
    BPL-enabled Internet access service "inextricably intertwines
    information processing and data transmission into a seamless service
    offering" without any factual support).

[^49]: 47 U.S.C. § 153(43).

[^50]: *See* UPLC Petition at 5.

[^51]: *See Wireline Broadband Internet Access Services Order*, 20 FCC
    Rcd at 14910-11, para. 104 (stating that, consistent with the
    Supreme Court's opinion in *Brand X*, the use of the transmission
    component as part and parcel of a facilities-based provider's
    offering to end users of wireline broadband Internet access service
    using its own transmission facilities is "telecommunications" and
    not a "telecommunications service").

[^52]: *See id.* at 14909-10, para. 103 (finding that a provider of the
    transmission component for wireline broadband Internet access
    service may offer the transmission on a common carrier basis if it
    chooses to, thus subjecting it to Title II common carrier
    regulations); *see also, e.g.*, COMPTEL Comments at 7-8 (arguing
    that if BPL providers offer their service on a common carrier basis
    then they are not information service providers); FirstCom Comments
    at 10 (arguing that electric utilities should not be compelled to
    offer a separate telecommunications transmission component).

[^53]: *See Wireline Broadband Internet Access Services Order*, 20 FCC
    Rcd at 14909-10, para. 103 (finding that neither the statute nor the
    *NARUC* precedent mandates that the broadband transmission of
    wireline broadband Internet access service be a telecommunications
    service when provided to an ISP). As such, we disagree with
    commenters that suggest that BPL-enabled Internet access service is
    not entitled to classification as an information service simply
    because certain electric utilities sell the transmission component
    of that service to ISPs, which in turn sell it to end users as a
    component of their finished BPL-enabled Internet access service
    offerings. *See, e.g.*, COMPTEL Comments at 9.

[^54]: *See Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4825, para.
    43 & n.169 (finding that the *Computer II* obligations have only
    been applied to traditional wireline services and facilities, which
    the Commission has explicitly limited to services provided over the
    infrastructure of traditional telephone networks, and declining to
    extend such obligations to information services provided over cable
    facilities).

[^55]: *See id.* at 4826, para. 47.

[^56]: *See, e.g.*, Joint Cable Operators Comments at 8 (requesting that
    the Commission condition any information services classification on
    a requirement that power companies perform reasonable make-ready for
    pole facilities available when there would otherwise be no room to
    attach a new wire); NextG Comments at 1-2 (requesting that the
    Commission condition its classification decision on new
    rights-of-way and pole attachment rules); Panasonic Comments at 5-6
    (arguing for conditions based on the use of "coexistence protocol"
    to eliminate the impact of interference to In-House BPL networks);
    NTCA Reply at 2 (arguing that electric utilities intend to
    cross-subsidize BPL services); Letter from Christopher A. Fedeli,
    Cole, Raywid & Braverman, L.L.P., to Marlene H. Dortch, Secretary,
    FCC, WC Docket No. 06-10 (filed Mar. 21, 2006) (urging the
    Commission to adopt additional regulations dealing with pole
    attachment rights, in conjunction with classifying BPL-enabled
    Internet access service); Letter from Maria T. Browne, Cole, Raywid
    & Braverman, L.L.P., to Marlene H. Dortch, Secretary, FCC, WC Docket
    No. 06-10 (filed Mar. 21, 2006) (reiterating the comments of NextG
    Networks, Inc. and Virtual Hipster in regard to pole attachment
    issues).

[^57]: *See* *IP-Enabled Services*, WC Docket No. 04-36, Notice of
    Proposed Rulemaking, 19 FCC Rcd 4863 (2004) (seeking comment on
    various issues regarding Internet Protocol (IP)-enabled services);
    *Consumer Protection in the Broadband Era Notice*, 20 FCC Rcd at
    14929-30, para. 146 (seeking comment on consumer protection needs
    for all providers of broadband Internet access services regardless
    of the underlying technology); Petition for Rulemaking of Fibertech
    Networks, LLC, RM-11303 (filed Dec. 7, 2005) (requesting that the
    Commission adopt a set of "best practices" addressing competitor
    access to poles and conduct); Petition of the United States Telecom
    Association for a Rulemaking to Amend Pole Attachment Rate
    Regulation and Complaint Procedures, RM-11293 (filed Oct. 11, 2005)
    (requesting that the Commission institute a rulemaking to amend
    existing rules governing pole attachment rates, terms, and
    conditions).

[^58]: *See Consumer Protection in the Broadband Era Notice*, 20 FCC Rcd
    at 14929-35, paras. 146-59.

[^59]: We reject commenter claims that we do not have a sufficient
    record to address this issue or that we should defer our decision on
    classification until we have addressed other policy issues.
    *Compare, e.g.*, COMPTEL Comments at 2; NJ Ratepayer Comments at 4;
    NTCA Comments at 1; PaPUC Comments at 2, 4; Virtual Hipster Comments
    at 4; NTCA Reply at 1; PaPUC Reply at 7, *with, e.g.*, Duke Reply at
    2; UPLC Reply at 10. Additionally, we disagree with commenter
    arguments that UPLC did not sufficiently plead its case because
    UPLC's petition does not discuss the statutory provisions of Title
    II that UPLC believes apply to BPL-enabled Internet access service
    today. *See, e.g.*, COMPTEL Comments at 3 (citing to the
    Commission's decision in *SBC Communications Inc. for Forbearance
    from the Application of Title II Common Carrier Regulation to IP
    Platform Services*, Memorandum Opinion and Order, 20 FCC Rcd 9361
    (2005), *remanded sub nom. AT&T Inc., f/k/a SBC Communications Inc.
    v. FCC*, 452 F.3d 830 (D.C. Cir. 2006)). We note that as this is not
    a forbearance proceeding, section 10 of the Act does not determine
    the specific pleading requirements necessary in this proceeding.

[^60]: FCC, *High Speed Services for Internet Access: Status as of
    December 31, 2005*, Table 2 (showing 5,071 advanced services lines
    provided over "power line and other" technologies) (July 2006).

[^61]: Concurring Statement of Commissioner Jonathan S. Adelstein,
    *Appropriate Framework for Broadband Access to the Internet over
    Wireline Facilities*, CC Docket No. 02-33, FCC 05-150, Report and
    Order and Notice of Proposed Rulemaking (August 5, 2005) (*Wireline
    Broadband Internet Access Order and Broadband Consumer Protection
    Notice*).