Broadband Grants Will Require Nondiscrimination
The federal agencies responsible for administering the broadband stimulus program have announced their initial grant criteria, and the news on the openness front is good. In comments filed in April, CDT urged that broadband services supported by stimulus money should connect users to the full Internet and the full range of Internet-based content and applications, as selected by users and without discrimination. After all, the core policy rationale for supporting broadband is that it serves as crucial basic infrastructure, much like roads or electricity.
Basic infrastructure is so important precisely because it enables so much other activity, much of which cannot be anticipated at the time the infrastructure is laid and is initiated by users of the infrastructure rather than the infrastructure’s operators. In a “Notice of Funding Availability” (NOFA) released yesterday, the agencies (NTIA and RUS) handling the broadband grant programs embraced the view of CDT and other advocates that broadband grantees should be subject to nondiscrimination requirements that go beyond the FCC’s 2005 broadband Policy Statement.
The NOFA says that grantees must “not favor any lawful Internet applications or content over others,” a requirement that “ensures neutral routing.” This explicit nondiscrimination requirement should provide much better protection against the risk of network operators playing favorites than relying exclusively on the FCC Policy Statement, as some parties had urged the agencies to do. The NOFA goes on to permit reasonable network management, as it should. The federal agencies responsible for administering the broadband stimulus program have announced their initial grant criteria, and the news on the openness front is good. In comments filed in April, CDT urged that broadband services supported by stimulus money should connect users to the full Internet and the full range of Internet-based content and applications, as selected by users and without discrimination.
After all, the core policy rationale for supporting broadband is that it serves as crucial basic infrastructure, much like roads or electricity. Basic infrastructure is so important precisely because it enables so much other activity, much of which cannot be anticipated at the time the infrastructure is laid and is initiated by users of the infrastructure rather than the infrastructure’s operators. In a “Notice of Funding Availability” (NOFA) released yesterday, the agencies (NTIA and RUS) handling the broadband grant programs embraced the view of CDT and other advocates that broadband grantees should be subject to nondiscrimination requirements that go beyond the FCC’s 2005 broadband Policy Statement.
The NOFA says that grantees must “not favor any lawful Internet applications or content over others,” a requirement that “ensures neutral routing.” This explicit nondiscrimination requirement should provide much better protection against the risk of network operators playing favorites than relying exclusively on the FCC Policy Statement, as some parties had urged the agencies to do. The NOFA goes on to permit reasonable network management, as it should. It doesn’t try to spell out precisely what this entails, but the language suggests that technical measures aimed at service quality should be “generally accepted” — perhaps a hint that, as CDT has argued, congestion management techniques should be consistent with basic networking standards.
The NOFA also points to caching and “application-neutral bandwidth allocation” as examples of techniques that would be permitted; hopefully this is meant to suggest that application-specific tactics, like Comcast’s interference with BitTorrent traffic, will be frowned upon. In any event, however, the agencies will require grantees to clearly disclose their network management tactics. This too is an important safeguard. Beyond the actual requirements, the NOFA embraces openness by stating a preference for applicants that pledge to exceed the minimum requirements for openness and nondiscrimination. In particular, the grant scoring system awards extra points for applicants that provide services on a wholesale basis, enabling consumers to have a choice of retail providers. This echoes a specific recommendation from CDT’s comments. Finally, it is worth noting that the openness requirements apply only to Internet applications and content. Grantees will be required to provide connections to the Internet, but may also provide “managed services such as telemedicine, public safety communications, and distance learning,” to which nondiscrimination requirements would not apply.
This position is consistent with a point CDT has been making from the beginning of its involvement in the Internet neutrality debate. It is crucial to preserve the open nature of Internet service, but that doesn’t meant that all non-Internet services should be forbidden. Internet services coexist with cable television services, for example. So long as they provide a robust level of “plain vanilla” Internet capacity, there is nothing wrong with a future in which broadband providers experiment with more specialized, dedicated-purpose services as well. It is good to see the broadband stimulus program get off on the right foot regarding openness. Naturally, administering the program may pose challenges, and the nondiscrimination provisions announced yesterday apply only to facilities built with stimulus funds. But it is an excellent start, and a strong sign that the Obama Administration’s endorsement of Internet neutrality will be carried forward into actual policies.
