American Recovery & Reinvestment Actof 2009 Broadband Initiative

Public MeetingMarch 23, 2009Washington, DC

Public MeetingMarch 23, 2009Washington, DC

Nondiscrimination and Interconnection Obligations

Public Interest ValuesPublic Service Policy

• No Blank Checks

• Open and Nondiscriminatory

• Interoperable and Interconnected

• Protect Innovation

• Maximize Consumer Choice

Non-Disrimination and InterconnectionGigi B. Sohn, President, Public Knowledge

Non-discrimination Option 1 (Free Press/Open Internet Coalition Language)Grant recipients must not provide or sell to Internet content, application, or service providers, any service that privileges, degrades, prioritizes, or discriminates against any lawful content transmitted over the grant recipient's Internet access service; and must offer bandwidth for Internet service upon reasonable request, on RAND rates, terms and conditions. A grant recipient may engage in reasonable network management consistent with nondiscrimination principle.

Non-discrimination Option 2 (based on 47 USC Section 202)It shall be unlawful for a grant recipient to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like broadband service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

Interconnection (based on 47 USC Section 251(c))Grant recipients have a duty to 1) negotiate in good faith; 2) provide interconnection at any technically feasible point within the requesting provider’s network that is at least equal in quality to that provided by the grant recipient to itself or any others, on RAND rate terms and conditions; and 3) provide technically feasible unbundled access/line sharing. Wireless interconnection include roaming negotiated at commercially reasonable rates.

Also• NTIA should prioritize projects that build shared infrastructure (RUS: priority for choice.)• FCC’s broadband principles insufficient – do not address prioritization/favoritism.• Requirements will not deter investment.

NTIA Broadband Roundtable - March 23, 2009

Nondiscrimination and Interconnection

•Nondiscrimination and interconnection obligations should be implemented in a manner that furthers the overall statutory goal of rapidly deploying BTOP funds.

•Imposing new and untested requirements as a condition of stimulus funding risks injecting contentiousness, uncertainty, and delay into a process that should focus on creating new jobs, increasing broadband availability, and spurring adoption.

•Nondiscrimination obligations applicable to infrastructure grant recipients should be limited to the FCC’s 2005 Broadband Policy Statement, as the ARRA permits.

•Interconnection obligations applicable to infrastructure grant recipients should be defined to require that facilities funded by BTOP grants interconnect directly or indirectly with the public Internet under currently applicable rules and practices.

• The goal of the ARRA is to stimulate the economy and stimulate broadband deployment.

• Careful consideration of how to define the requirements for recipients is important, but must be balanced against the need to create jobs, stimulate the economy, and foster broadband deployment to unserved and underserved areas.

• With that balance in mind, interconnection to the public network will facilitate the goal of ensuring that all Americans enjoy the benefits and opportunities of expanded broadband availability and subscribership.

• Additionally, NTIA and the FCC should be wary of defining – and possibly expanding – non-discrimination rules for broadband providers.

• As President Obama said after signing the ARRA, this does not “mark the end of our economic problems, . . . nor does it constitute all that we are going to have to do, . . . this marks the beginning of what we need to do to create jobs for Americans.”

Interconnection and Nondiscrimination

Interconnection and Non-Discrimination

• Primary Purpose of ARRA– Create jobs ASAP– Promote economic recovery ASAP

• FCC Policy Statement Sets Right Approach– “To encourage broadband deployment and promote the open and

interconnected nature of the public Internet”

• Broadband and the Internet under the Policy Statement– Economic growth– High-quality jobs– Innovation

• More Rules Contrary to ARRA Purposes and Reaching the Unserved– The highest cost areas of the country– Adding costs, complexity and litigation dissuades applicants

• This is the m ost im portant elem ent of the program .W HY

Interconnection

• Architecture is Politics (Kapor)… and Policy!

3) Look to the standards process: RAND licensing.

1) Line sharing/bitstream access as a starting point.

5) Enforcem ent m echanism s: Arbitration? SRO? Sanctions: Return of $$$?

2) MFN from existing interconnection arrangem ents?

4] “Com petition am ong network providers, application and service providers, and content providers.”

4) Don’t assum e platform technology, or apps (e.g. sm art grid, e-health).

Non-discrim ination

• Let investm ent and innovation com e from everywhere.

1] Access lawful Internet content.2] Run apps and use services.3] Connect legal devices that don’t harm the network.

HOW

kevin werbach • werbach@wharton.upenn.edu • twitter.com /kwerb

NTIA Broadband Stim ulus Meeting • March 23, 2009

FCC Policy Statem ent (per ARRA)

6) Data, data, data! W hat equipm ent, services, user/IXN pricing,QOS.

• Em pirical data: is the US so different from the world?

W HAT

• Telecom antecedents: 47 USC §§ 201, 202, 251

See tinyurl.com /c2ay2v

Available at: werbach.com /docs/btop.pdf

• Norwegian Net Neutrality sum m ary: tinyurl.com /bzcv2z

American Recovery & Reinvestment Actof 2009 Broadband Initiative

Public MeetingMarch 23, 2009Washington, DC

Public MeetingMarch 23, 2009Washington, DC