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

On July 2, 2009, the National Telecommunications & Information Administration (NTIA) released the rules for the broadband stimulus program (called the Broadband Technology Opportunities Program or BTOP). While a plain reading of the statute language suggests that NTIA should decide on an individual basis whether a private profit making entity is in the public interest, NTIA instead a priori declared all private companies in the public interest. It simply acted as though the House legislation had prevailed over the Senate. NTIA justified itself by declaring that the Congress intended to "invite a diverse group of applicants to participate." NTIA thereby accomplishes a sleight-of-hand tactic- declaring that it is complying with the original intent of some in Congress rather than complying with the text actually passed by Congress. If Congress had intended all entities to be eligible on an equal footing, it would have adopted the House eligibility language. Congress explicitly did not do this. Rather, it chose a higher bar for private companies. They had to be judged in the public interest. The NTIA ruling did not explain what it meant by "public interest". Nor did it indicate that it would declare ineligible those companies that have violated the public trust previously. Instead, it put global companies driven to maximize profits on a level footing with public and non-profit corporations chartered to maximize benefits to the community.