House Broadband Stimulus Bill Fails to Define "Open Access"

As sometimes happens, some lawmakers have proposed legislation possibly specifying policies they cannot define. In approving $2.9 billion for network build-outs in rural and underserved areas, the House Energy and Commerce Committee insisted that the funding comply with the Federal Communications Commission's statement of "Internet Freedoms" contained in FCC 05-151.

The House bill also calls for grant awards to be made for broadband networks using "an open access" framework that complies with the FCC 05-151 principles. The term ‘‘open access’’ is to be defined by the Federal Communications Commission not later than 45 days after the date of enactment of the law.

Those principles include the right of consumers to access the lawful Internet content of their choice and run applications and use services of their choice, subject to the needs of law enforcement.

Consumers are entitled to connect their choice of legal devices that do not harm the network and

are further entitled to competition among network providers, application and service providers, and content providers.  

Those "Internet freedoms" are not exactly the same thing as "network neutrality," though many observers seem to think they are identical.

Still, the Senate also has to approve the bill, so it remains unclear whether the language will be retained, in any case.

Some observers interpret this as calling for some form of network neutrality, though the term itself is a muddle whose meaning nobody can seem to agree on.

The House version of the bill panel calls for funneling new funds to the existing grant programs operated by the National Telecommunications and Information Administration. The House version calls for 25 percent of the $2.9 billion to be spent on areas of the country with no broadband access with the remaining 75 percent poured into "underserved" areas.

The other half of the $6 billion dedicated to broadband build out in the House stimulus package calls for $2.9 billion in grants and loans to administered by the Rural Utilities Service of the U.S. Department of Agriculture.

If the language survives in the Senate or any reconciled bill, presumably, any service provider that accepts the funding will have to comply with whatever the FCC defines as "open access" for all customers and services on that network.

One wonders whether content delivery services ultimately will be allowed, in that case, as CDNs must, by definition, employ packet discrimination to make their features work.