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Changing the Rules: Beware Free Money

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One of the dangers of federal programs like the broadband stimulus programs BTOP and BIP is that the feds make the rules... and sometimes they just change the rules. I previously wrote about how the BTOP rules privileged private companies over the public sector (despite Congress' clear intent to prioritize the public sector). As this article notes, NTIA effectively changed those rules along the way -- resulting in what might technically be termed "screwing over" a variety of applicants. Though the Round 1 rules encouraged applicants to apply for last-mile funds, the vast majority of awards went to middle mile applications. In fact, while in Lafayette, we tried to name more than 5 last-mile grants. Why the change in focus? The most likely reason seems to be opposition from powerful, well connected incumbent companies that did not want to deal with the hassle of competition in small parts of their territories. So NTIA quietly chose to award funds to less controversial projects. The problem is that the hundreds of applicants poured money and resources into proposals for last-mile projects that they believed would be considered in good faith. We never miss an opportunity to note that whoever owns the network makes the rules. Well, whoever disburses the funds, makes the rules (and in this case, quietly changes the rules). And in DC, corporate interests all have a seat at the table. When one goes begging to DC for funds, one should not be surprised at the many hoops and frustrations of that process. Not only are communities better off owning their infrastructure - they are generally better off when they take responsibility for financing the network and do not depend on free money (whether from the private sector or DC). Communities have financed networks with a variety of means -- from a loan from a local bank to bonds (taxable, nontaxable, general obligation, revenue, etc) to slowly expanding networks over a longer period of time. TANSTAAFL - There Ain't No Such Thing as a Free Lunch - Robert A. Heinlein
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Stimulus - Private Companies Won

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Last summer, I predicted the NTIA's rules for the broadband stimulus would disadvantage the public sector and tilt the playing field toward the private sector. I was right. Consider a recent story about the first round of the stimulus:
With time and resources scarce and applications to review from nearly 2,200 entities, favoring vendors was less complicated because they wrote savvier proposals and required less follow-up, in Winogradoff's view.
Private companies were able to submit savvier proposals and generally swamp the system with far more proposals, slowing the entire process because the federal agencies did not expect the volume. NTIA claimed they wanted to make the funds more widely available and instead shut out much of the public sector. NTIA, along with most federal agencies, simply does not understand that a "level playing field" between private companies and the public sector is simply not possible. The public sector has different interests - maximizing social benefits whereas the private sector is interested in generating profits. Public and private entities are different creatures, operating in different regulatory environments, with divergent motivations. You can no more create an objectively level playing field between the two than one could in designing a contest between basketball and soccer teams. The rules are simply going to favor one or the other. The question becomes, who should the rules favor? When it comes to infrastructure and tax dollars, the rules should favor those who put the public interest first. This was the lesson of the Rural Electrification Administration, which was horrified at the idea of lavishing grants on profitable companies in the hopes they would temporarily invest in rural areas. Instead, they offered loans to cooperatives and extended electricity to farms across the country during the worst Depression in our history. What have we learned from that? Nothing. We contort our policies while offering more and more money to companies that time and time again show they have no interest in serving rural America. This is ludicrous - not only have we already built a wire out to almost every home in America, we still have the polls!
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Comments on Round Two for Broadband Stimulus

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I have just submitted comments from the Institute for Local Self-Reliance to both the the National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) regarding suggestions for rules in round two (the last round) of the broadband stimulus programs -- the Broadband Technology Opportunities Program (BTOP - administered by NTIA) and Broadband Initiatives Program (BIP - administered by RUS). The two agencies previously posted a joint request for information [pdf] on lessons learned from the first round:
RUS and NTIA released a joint Request for Information (RFI) seeking comment on further implementation of the Broadband Initiatives Program (BIP) and the Broadband Technology Opportunities Program (BTOP). Comments must be received by November 30, 2009. The input the agencies expect to receive from this process is intended to inform the second round of funding.
We offered five pages of comments, responding directly to the questions - I am led to believe that this is the preferred way of responding to such requests for information. Thus, the format consists of a short introduction and then questions (in italics) followed by our responses. Unsurprisingly, we generally encourage NTIA and RUS to better serve the public interest by requiring more transparency in the second round. We also call on them to stop accepting "advertised" speeds in their broadband definition and use actual delivered speeds in order to ensure communities are not discouraged from applying because their incumbent providers exaggerate the capabilities of their network. Most importantly, we call on NTIA and RUS to encourage public sector entities to apply by ceasing to consider all private networks to operate in the public interest. As we previously documented here, NTIA subverted the intent of Congress with the rules from round one. The rules should prefer public and nonprofit entities as they are directly accountable to the public and should therefore be the first in line to receive public money for essential infrastructure. As the number of applications to NTIA and RUS was far higher than expected, making the public interest requirements stronger should be a natural response.
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Ranking Broadband Stimulus Applications in Minnesota

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Our focus on the broadband stimulus is almost entirely on last-mile infrastructure because it is the most challenging and expensive problem to solve before all Americans will have affordable access to the broadband networks they need in the modern era. As we are most familiar with Minnesota, we decided to take an in-depth look on who is proposing what projects in our state. Total Infrastructure Grants Requested for Last Mile solely in MN: at least $240 million Total Infrastructure Loans Requested for Last Mile solely in MN: at least $85 million Groups seeking stimulus funds to deliver last-mile broadband access in Minnesota have asked for hundreds of millions of dollars. By my tally, some 17 applicants are seeking to serve Minnesota with last-mile access (I threw out applications pertaining to middle mile infrastructure, digital divide, and those last-mile projects that combine Wisconsin and North Dakota areas) have requested some $240 million in grants and $85 million in loans. If one assumes that the total amount of money is divided evenly among the states, this is somewhere around 3x as much stimulus money that will be awarded to Minnesota applicants over the course of the multiple rounds of funding. At some point, this list will have to be winnowed and prioritized, so let's delve into it. All applications still must survive the peer review process (ensuring they met NTIA/RUS requirements), the incumbent challenges (incumbents can veto applications by showing that targeted areas already have broadband advertised to them), and the prioritization of surviving projects by each state (no one seems sure of how this will happen in Minnesota, our Governor is too busy not running for President in 2012). There are two applications that should be jettisoned immediately, Arvig Telephone Company and Mid-State Telephone Company, both of which are owned by TDS Telecom.
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FairPoint unfairly competing with UMaine?

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FairPoint's lobbyists in Maine have gone on the offensive, arguing that another group attempting to get stimulus funds is competing unfairly. FairPoint, you may remember, has already accomplished the improbable: it took over the dilapidated networks in New England from Verizon and made them worse. The charge of unfair competition, even if it were true, would be silly because FairPoint has proven it cannot provide these important services. Karl Bode put Fairpoint in its place:
Even if the company was competing directly with UMS, at least Maine residents could be certain the University will even exist a year from now. But as it stands, Fairpoint isn't competing with the University of Maine. They're competing with a public private partnership of which the University is only a member. Applications for Federal funds are open to public entities and private companies. Given recent history, giving taxpayer dollars to somebody other than the regional dysfunctional incumbent might not be the worst idea in the world.
Bangor Daily News argues that rural Maine cannot afford to fight over who will expand broadband access. Unfortunately, Bangor Daily News' why-can't-we-all-just-get-along approach ignores the very real damage Fairpoint has already done to the state. Their suggestion that these competing networks just "be merged" seems like a call for open access but ignores the need for Fairpoint to maximize profits (right after it gets out of bankruptcy) rather than invest in communities. The larger point is ominous: the idea that large institutions should suffer with whatever crummy service Fairpoint provides (at the high prices they will provide it) in order that Fairpoint can expand its poor DSL service to rural areas, misses the important point that Fairpoint cannot and will not offer the services that Maine needs. As Mayor Joey Durel of Lafayette suggested, maybe Maine should just send its jobs down to Lafayette, where they are building the necessary infrastructure for the future.
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Stimulus Updates

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How NTIA Dismantled the Public Interest Provisions of the Broadband Stimulus Package

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After winning the election, the Obama Administration announced that broadband networks would be a priority. True to its word, the stimulus package included $7.2 billion to expand networks throughout the United States. A key question was how that money would be spent: Would the public interest prevail, or would we continue having a handful of private companies maximizing profits at the expense of communities?

Creating the Broadband Stimulus Language

The debate began in Congress as the House and Senate drafted broadband plans as part of the American Recovery and Reinvestment Act The House language on eligibility for stimulus grants made little distinction between global, private entities and local public or non-profit entities.
the term `eligible entity' means--
(A) a provider of wireless voice service, advanced wireless broadband service, basic broadband service, or advanced broadband service, including a satellite carrier that provides any such service; (B) a State or unit of local government, or agency or instrumentality thereof, that is or intends to be a provider of any such service; and (C) any other entity, including construction companies, tower companies, backhaul companies, or other service providers, that the NTIA authorizes by rule to participate in the programs under this section, if such other entity is required to provide access to the supported infrastructure on a neutral, reasonable basis to maximize use;
The Senate language clearly preferred non-profit or public ownership.
To be eligible for a grant under the program an applicant shall—
(A) be a State or political subdivision thereof, a nonprofit foundation, corporation, institution or association, Indian tribe, Native Hawaiian organization, or other non-governmental entity in partnership with a State or political subdivision thereof, Indian tribe, or Native Hawaiian organization if the Assistant Secretary determines the partnership consistent with the purposes this section
The final language, adopted by the Conference Committee and passed by both houses in February was a compromise. It favored a public or non-profit corporation but allowed a private company to be eligible only if the Assistant Secretary of the Department of Commerce found that to be in the public interest.
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NOFA Reactions: a Mini Round Up to Broadband Stimulus Rules

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I have been digesting the NOFA (the rules for broadband stimulus projects) and I am stunned at just how much I disagree with them. I think the National Telecommunications and Information Administration, a branch of the Department of Commerce in D.C., and the Rural Utilities Service have really done a disservice to this country. Before I highlight some commentaries that I have found most interesting thus far, I want to note that this is why we take a bottom-up approach. In talking to many people working on community networks, most everyone is frustrated and the rest are really angry. It sure seemed like the feds were heading in the right direction, but the broadband stimulus rules show just how out of touch they are. We advise communities to find ways of being self-reliant. If they are able to get help from D.C., that is great; but they should never depend upon it. We will have some more details of our reaction to the rules soon, but for now I wanted to highlight some of the folks that reacted quickly and offered interesting thoughts. Starting on the positive side, Andrew Cohill at Design Nine thinks the encouragement for open access networks and transparency could ultimately be the defining characteristic.
This means networks that offer competitive pricing from more than one provider get preference--this is huge, and could have important long term consequences. The rules also do something else quite important on the same page (page 66, line 1463), where there is explicit preference for open access transport, which in telecom jargon is "interconnection." The rules say that companies that post their interconnection fees publicly and agree to nondiscrimination will get preference.
If he is correct, the implications are great. However, the rules certainly could have demanded open access as a condition of public money being used rather than a limited form of extra credit for those who will encourage competition in a market suffering the utter lack of it. Harold Feld, who rightly noted that good people struggled and worked on this, saw both positives and negatives in the rules. He defends the "broadband" speed definition from the FCC (768kbps down and 200kbps up):
I am in the minority in thinking they played this right.
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