Feds clarify frequent questions about stimulus programs, including application of “net neutrality” considerations

You think you’re the only one with questions about the broadband stimulus programs? Guess again. There are enough questions flying around that the Feds have posted, with a minimum of fanfare, a 13-page set of Frequently Asked Questions regarding the BTOP and BIP programs. Check them out here

We have been concerned with a question about the reach of the net neutrality requirements imposed on BTOP and BIP awardees. 

FAQs to the rescue! 

Section VI.A of the FAQs asks and answers:

Q:        Do the nondiscrimination and interconnection requirements apply to the portions of the applicant’s network that are not funded by BIP or BTOP?

A:        No

(A brilliantly concise answer which we applaud.)  Logic appears to prevail.

But there is more:

 Q:        Is last mile infrastructure subject to the same nondiscrimination and interconnection obligations as middle mile infrastructure?

 A:        Yes. The same nondiscrimination and network interconnection obligations apply to both Last Mile and Middle Mile projects. (See NOFA section V.C.2.c.) For BTOP only, Broadband Infrastructure applications will be evaluated on the applicant’s commitment to exceeding the minimum requirements. Section VII.A.2.c of the NOFA (“Project Benefits”) explains how Last Mile and Middle Mile applicants may exceed the minimum requirements, based on the different technical characteristics of the two types of projects.

As straightforward as these answers seem, the practical aspects of compliance may not be so easy to resolve. After all, if one or more parts of a network are subject to net neutrality obligations, it may be difficult to sector the network so as to be net neutrality-compliant only in funded portions, while still retaining operational flexibility in non-funded portions. And conceptually, it might be challenging to justify such a bifurcation.

Also, as our colleague Mitchell Lazarus has previously noted, it may be hard to tie down precisely where in a particular network a net neutrality violation actually occurs. Thus, any network with any BTOP/BIP-funded component could theoretically be pulled into a net neutrality battle.

So while the FAQs give concise, logical answers, the practical and conceptual realities are less clear.

Also less clear is the FAQs’ authoritative significance, if any. The FAQs don’t say where they came from. Federal agencies act through the issuance of formal orders, notices and the like, pursuant to the Administrative Procedure Act and other statutes. In their current posture, the FAQs, while no doubt intended to help clarify matters, may not have any binding effect on RUS, NTIA, the FCC, or anybody else. Trust, but verify. Or, better – first verify, then trust.