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Fortnightly Magazine - December 2004
    companies, as well as the former's ownership of terrestrial wireless systems, also could limit the effectiveness of wireless broadband competition.

    2. Notice of Proposed Rulemaking, ET Dockets 03-104, 04-37, released Feb. 23, 2004.

    3. See, Report and Order, ET Dockets 03-104, 04-37, released Oct. 28, 2004 (FCC 04-245). For example, in the new Part 15 BPL rules, operation in designated frequency bands is precluded only for systems using "overhead medium voltage power lines." (15.615 (f)(1)). In addition, only prior "consultation" procedures are required in designated areas rather than the formal frequency coordination advocated by NTIA. (15.615 (f) (3)).

    4. NTIA subsequently withdrew this claim. See, Letter and enclosure from Frederick R. Wentland, NTIA, to Edmond J. Thomas, Chief, Office of Engineering and Technology, FCC, in ET Docket 04-37, Sept. 24, 2004 (search along power line for peak emissions unnecessary).

    5. See, Yoo, Christopher S., "Would Mandating Broadband Network Neutrality Help or Hurt Competition? A Comment on the End-to-End Debate," , Vol. 3, 2004 ().

    6. See, . v. FCC, 345 F.3d 1120 (), rehearing denied, pet'n. for cert. pending. The court adhered to a prior ruling that cable modem was in part a "telecommunications service" subject to common carrier regulation and thus overruled an FCC determination that cable modem was a non-common carrier "information service." If the court's view prevails, the FCC will have to "forbear" from regulation to exempt cable modem and other broadband "telecommunications service" from common carrier obligations.

    7. See, Yoo, supra note 5. The FCC has announced adoption of a Notice of Proposed Rulemaking in which it tentatively concludes that the Communications Assistance for Law Enforcement Act applies to "facilities-based providers of any type of broadband Internet access" including "powerline." FCC News Release, Aug. 4, 2004.

    8. See, Yoo, supra, note 5.

    9. For an argument that the benefits of standardization outweigh the costs of an uncompetitive broadband transport platform market, see, Wu, Tim, "Broadband Policy: A User's Guide" (2004) (). Standardization of the interface between In-house BPL and Access BPL systems, however, would support competition between different Access BPL systems.

    10. See, Farrell, Joseph & Weiser, Philip J., "Modularity, Vertical Integration, and Open Access Policies: Towards a Convergence of Antitrust and Regulation in the Internet Age," 17 , No. 1 at 102-105 (2003).

    11. See, , The New York Public Service Commission's Statement of Policy on Unbundling and Order directing Tariff Filings, in Case 00-M-0504, issued Aug. 25, 2004, in which the agency established in a separate proceeding principles for allocating common costs between competitive commodity service and monopoly distribution service offered by New York electric utilities.

    12. See, Kahn, Alfred E., , Vol. 1, at 79-82. (John Wiley & Sons 1970). Variable common costs can and should be allocated between the regulated and competitive services. Id. at 78-79.

    13. See, Weiser, Philip J., "Toward a Next Generation Regulatory Strategy", 35 at 74-84 (2003), in which the author argues that the FCC's broadband regulatory policy should be based on antitrust law principles.


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