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Jerry Fugit and Eric Greig,  two University of Texas law students asked 67 companies for the basic information on "interconnection, terms of service, nondiscrimination, or network management." 61 refused to answer at all, and most of the rest didn't answer the basic questions.  My reading of the stimulus rules suggests much of this information needs to be publicly disclosed.

     In practice, government agencies usually ignore violations like this unless they have other problems with the grant.  So the University has applied in round two for a grant to create a center to resolve these problems. Best of luck. db

Of the 67 companies we contacted, only six (6) were willing to share any information regarding interconnection, terms of service, nondiscrimination, or network management.  Only one (1) of these applications, VTX Telecom, Inc., would share the names and geographic locations of the network’s anchor institutions and interconnection points, its terms of service, and its network management practices.

Jerry Fugit

Eric Greig

4/26/10

Final Thoughts on the BIP/BTOP Survey

The Recovery Act broadband programs – the Broadband Technology Opportunities Program (BTOP) and the Broadband Initiatives Program (BIP) - represented the first test cases to determine whether Internet Service Providers (ISPs) will abide by voluntary measures meant to insure nondiscrimination, transparency, and open network management.  After the D.C. Circuit’s Comcast decision, it is uncertain whether the FCC may lawfully regulate the behavior of ISPs.  It is, therefore, important to see whether ISPs are willing to adhere to principles of nondiscrimination and transparency when these responsibilities are voluntarily undertaken.  So far, the results have been discouraging.

The purposes of the BTOP and BIP programs were to extend broadband access to unserved and underserved areas to spur job creation, stimulate long-term economic growth, and narrow gaps in broadband deployment and adoption.  In order to maintain the powerful effect the Internet has on innovation and communication during this expansion, acceptance of BTOP/BIP infrastructure funding is contingent upon acceptance of the nondiscrimination and interconnection obligations found in the original Notice of Funds Availability. In their applications, grantees were required to disclose their proposed interconnection, nondiscrimination and network management practices.   These policies exist to ensure that networks funded by the BTOP and BIP programs will operate as open networks that are transparent to the public.

The programs, however, lacked an implementation mechanism to ensure that those receiving BTOP/BIP funding continue to abide by these conditions.  The Notice of Funds Availability does not allocate funds to compliance enforcement nor involve the FCC in enforcing the obligations. In fact, given the recent Comcast decision by the D.C. Circuit that found the FCC does not currently have the authority to regulate Internet service providers, BTOP/BIP awardees are currently the only U.S. companies that are required to run their networks openly. Parties who feel a BTOP/BIP awardee is not satisfying its obligation of nondiscrimination must first seek a rules clarification from the FCC, and the FCC has been notoriously slow to resolve rule disputes involving the Internet.  For instance, the telecommunications industry has awaited a rule clarification from the FCC regarding technologies like VoIP for nearly a decade.  Without an effective watchdog to monitor compliance, there is a significant risk that a BTOP/BIP awardee will manage its project in a non-open and discriminatory manner.

The Notice of Funds Availability (NOFA) suggested that any information not disclosed in a grantee’s executive summary may be requested directly by the public.  Our study, conducted under the supervision of the University of Texas School of Law, attempted to do just that. We contacted sixty-seven (67) BTOP and BIP awardees by phone, email, or both. We presented the awardees with a standard form of questions related to their networks’ policies of interconnection, pricing, nondiscrimination, and traffic management.  Of the 67 companies we contacted, only six (6) were willing to share any information regarding interconnection, terms of service, nondiscrimination, or network management.  Only one (1) of these applications, VTX Telecom, Inc., would share the names and geographic locations of the network’s anchor institutions and interconnection points, its terms of service, and its network management practices.

The vast majority of responses we received displayed a broad unwillingness to share any information that could be useful to other broadband networks or consumers.  One company was “not yet comfortable discussing its network management practices” with the public.  Another stated that it had current contractual terms of service and pricing for network interconnection and backhaul, but was “not willing to share that information with the public.”  Even a large state applying for funds, when asked whether its terms of service or pricing would be available if a Round 2 applicant wanted to interconnect with its network, replied that they “might” be available, but since then, has not responded with any actual terms or pricing.  A county cooperative stated that it would only offer interconnection to a “qualified company,” as determined by a matrix of requirements, but because they were unwilling to share the details of the matrix or its requirements, we were unable to determine whether any other network would be “qualified” in the eyes of that county cooperative.  Sixty-two of the awardees failed to respond in any manner whatsoever, leaving over $1,180,000,000 ($1.18 billion) of taxpayers’ money unaccounted.

This lack of accountability does not uphold the NOFA’s standard of “rigorous reporting” needed to ensure proper stewardship of significant taxpayer funds.  Congress, the RUS, and the NTIA have made transparency a hallmark of the Recovery Act programs, yet fewer than 10% of the grantees were willing to share any information regarding interconnection, nondiscrimination, peering, or network management practices.

Our experience attempting to contact BTOP/BIP program awardees was disheartening, to say the least.  We were continually met with refusals to answers, delays in answering that led nowhere or, in the majority of the cases, abject silence.  If the public runs into the same difficulties we experienced in accessing the information BTOP/BIP awardees agreed to supply to the public, then the federal government’s attempt to ensure an open Internet through voluntary disclosures and transparency looks bleak.

For any questions, feel free to contact Jerry Fugit   jfugit   (usual) gmail or Eric Greig at greig.8 (the usual) at gmail.

University of Texas School of Law Broadband Grant Survey

Please take a moment to fill out this survey.  We hope that the information you provide will assist projects applying for Round 2 funding to better coordinate their grant proposals.  You may answer these questions by modifying this document or answering in a separate file or email.  Please attach any relevant Terms of Service, network management practices, or peering agreements.  

Thank you very much for your participation in this survey.

1. What are the names and locations of the anchor institutions that will be served by your project? Please list the names, addresses, and horizontal and vertical coordinates.

2. What are the locations of the interconnection points into your network? Please list by address, horizontal and vertical coordinates, and the type of physical interconnection offered (fiber, copper Ethernet, wireless tower space, etc.).

3.What type of  interconnection will you make available to other providers?  By “other providers,” we mean potential Round 2 applicants in a neighboring service area, including sustainable broadband adoption projects.

3(a). Are any terms of service (pricing, collocation, quality of service, etc.) currently available for such providers? If so, please attach the terms of service to your response.

3(b). Will you engage in BGP4 Peering for the mutual exchange of traffic?

3(c) If so, will you allow for cost free peering or do you intend to charge other networks?

3(d). If you intend to charge a fee, what rates and services will you make available to other networks?  For instance, will the service include the use of your project’s IP addresses?  What will you charge for bandwidth?

4. What network management practices do you plan to employ, and where will you post such practices?

5. Would you be willing to join a regional best practices/Internet clearinghouse center to coordinate and interconnect your networks with other grant recipients?

6. Do you believe a major university would be an appropriate location to provide interconnection for other networks?

7. Do you currently have any peering agreements with other networks?  If so, which networks, and what your peering terms?

8.  Is there any other information you would like to share with us regarding your broadband infrastructure project?