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September 2016

Twenty-Eighth Quarterly Status Report to Congress Regarding BTOP

Pursuant to the American Recovery and Reinvestment Act of 2009 (ARRA or Recovery Act) (Public Law No. 111-5), the National Telecommunications and Information Administration (NTIA) provides this Quarterly Report on the status of the Broadband Technology Opportunities Program. This Report focuses on the Program’s activities from October 1 to December 31, 2015.

NTIA established key project indicators to track the success of the Program. SBA projects tracked the number of households subscribing to broadband, or “SBA Subscribers.” CCI projects tracked the number of “New and Upgraded Network Miles” and the number of “Community Anchor Institutions (CAIs) Connected.” Since the BTOP appropriation originally expired on September 30, 2015, NTIA retired the key project indicators. NTIA noted this in the FY 2016 budget submitted to Congress. However, on September 30, 2015, President Obama signed the Continuing Appropriations Act, 2016, which extended the availability of BTOP funding for both active grants and those in closeout until September 30, 2020. As a result, NTIA reinstated the key project indicator for the number of “New and Upgraded Network Miles.” However, due to the limited number and type of projects remaining, NTIA did not reinstate the key project indicator “CAIs Connected.” As of December 2015, NTIA’s CCI grant recipients continued to make progress toward the Program’s FY 2016 goal of deploying new or upgraded network miles. Grant recipients’ quarterly progress reports provide more granular details of these results. These reports were made public in March 2016, except for those closeout reports not yet approved by NTIA. Between October 1 and December 31, 2015, the remaining BTOP grant recipients deployed or upgraded 1,037 additional network miles. This brings the cumulative total for all BTOP recipients to more than 116,702 miles of new or upgraded network infrastructure.

Property Implications of Proposed Transition of U.S. Government Oversight of Key Internet Technical Functions

The Department of Commerce’s National Telecommunications and Information Administration (NTIA) proposes to transition its oversight of key Internet technical functions (the IANA functions) and the Internet domain name system to a global multistakeholder community. We addressed whether U.S. Government property will be transferred or otherwise disposed of in connection with the transition in violation of the Property Clause of the U.S. Constitution (Article IV).

We find it is unlikely that either the domain name system or the authoritative root zone file (the “address book” for the top-level domain) is U.S. Government property under Article IV. We also find the Government may have certain data rights, and has limited intellectual and tangible property, all of which constitute Article IV property, but that property will be retained and not disposed of in connection with the transition. Finally, the Government has a contractual right to continued performance by the entities carrying out the IANA functions and related services. That right, which also constitutes U.S. Government property, would be disposed of if NTIA terminates the agreements rather than allowing them to expire, but NTIA has the requisite authority to dispose of this Government property interest.

The GOP’s Plan to Keep Control of Internet Naming

Senate Commerce Committee Chairman John Thune (R-SD) said he “expects” language that would halt the transition of an Internet governing body away from US government control to make it into the upcoming continuing resolution (CR) to fund the federal government. “Right now they’re trying to work out what that would look like, what would be effective in terms of putting the brakes on this,” he said. “I don’t think that anybody feels that we’re ready yet for that transition to take place, and so the question is how do you make that happen?”

Chairman Thune said that he expects the planned transition of the Internet Assigned Numbers Authority to be one of several issues that could push negotiations with Democratic Sens over the CR into next week. Meanwhile, the squabble over whether the US should follow through on the transition heated up Sept 13 as a report from the Government Accountability Office found that the upcoming transfer of power wouldn’t violate constitutional law.

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