On March 24, 2009, the FCC invited comments from interested parties concerning the Commission's consultative role in the broadband provisions of the American Recovery and Reinvestment Act of 2009 (Recovery Act). In the Recovery Act, Congress assigned grant and loanmaking responsibilities to the Department of Commerce's National Telecommunications and Information Administration (NTIA) and the Department of Agriculture's Rural Utilities Service (RUS). On April 13, the ARRL, through General Counsel Chris Imlay, W3KD, submitted comments that expressed concern as "the threshold for what constitutes 'broadband' is a critical determination that will inevitably determine the success or failure of the [Broadband Technologies Opportunities Program] BTOP program going forward."

In the League's comments to the FCC, the ARRL asked the Commission to adopt as the definition of broadband those technologies capable of the minimum threshold bidirectional speeds [as recommended in the ARRL's comments], without variation among the type of broadband technology under consideration, as a minimum threshold in order to be considered for grants or loans of public funds."

While the FCC has no funds under the Recovery Act for grant or loanmaking, it does, however, have what the Commission describes as "an important role to play in providing expert, technical advice to the NTIA" as it establishes the BTOP, "and the Commission may also provide expert, technical advice to RUS as it proceeds with its own programs."

Imlay pointed out to the Commission that the ARRL actively participates in the Committee for Communications Policy of the Institute of Electrical and Electronics Engineers-USA (IEEE-USA CCP), "which has engaged in considerable discussion of universal access to high-speed broadband networks, and in particular, broadband definitions and target goals for broadband deployment."

He told the Commission that the ARRL "wholeheartedly concurs" with that organization's views on broadband technologies, as detailed in its position statement, Nationwide High Speed Broadband Data Services, that says "The most important short-term goal is broadening ubiquitous availability [of broadband]. Data rates should be sufficient to provide the equivalent of several channels of bidirectional, high resolution video, achievable by expanding the capabilities of current technologies" (emphasis added by Imlay).

The IEEE also says that it "initially advocates" the achievement of at least 20 Mb/s bidirectional speed with 90 percent availability throughout the nation within five years. "The wide penetration of such speeds will achieve most of the expected benefits and accommodate numerous simultaneous applications per household or small business. Of course, greater speeds can be had by those with greater needs. We further advocate the achievement of at least 100 Mb/s bidirectional speed with availability to all businesses and households within 10 years. The technology necessary to meet this goal is scalable to almost any future need at inexpensive upgrade costs."

Imlay said that IEEE-USA's position statement concludes that there are "two overarching goals for nationwide high-speed broadband networks: widespread availability and high performance." In providing public funds to achieve widespread availability, Imlay stated that the FCC, NTIA and the RUS should ensure that high performance should not be set aside to achieve that goal. "This," he told the Commission, "to ARRL, means the establishment of a floor for throughput of at least 20 Mb/s bidirectional speed for funding of broadband systems to be developed between now and 2014, and 100 Mb/s bidirectional speed for those systems to be implemented between 2014 and 2019. Expenditure of public funds should be limited to the technologies that can meet these goals."

The IEEE-USA statement also notes, Imlay explained to the Commission, that the FCC's recently adopted definition of broadband speed "is a series of tiers, starting as low as 768 kb/s. As noted in the statement, this is woefully inadequate to perform even current computing applications." Imlay called for an elimination of tiers "at least for purposes of determining what broadband technologies should be funded with public funds."

Imlay, in his comments, said that the "most urgent" of the FCC's "consultative issues with the NTIA" involve defining just what broadband is. "The Commission is obligated pursuant to the Recovery Act to consult with NTIA on the establishment of a national broadband service deployment and expansion program, and the NTIA is obligated, through the BTOP program, to provide access to broadband service to consumers residing in unserved areas," he said. "It is not useful in the expenditure of large sums of Recovery Act funds to promote broadband technologies that do not include the capabilities needed by individuals and businesses located in rural or underserved areas. Therefore, the threshold for what constitutes 'broadband' is a critical determination that will inevitably determine the success or failure of the BTOP program going forward."

The ARRL recognizes that the FCC has struggled with this definition for some time, Imlay wrote: "Indeed, in the Notice of Inquiry in Docket 09-51, FCC 09-31, released April 8, 2009 (at ¶15-16), the Commission stated that 'Broadband can be defined in myriad ways. In order to ensure that all people of the United States have access to broadband capability, we must make sure that the Commission appropriately identifies goals and benchmarks in this regard… In addition, to the extent that broadband is defined by 'speed,' should the Commission consider raising the speeds that define broadband? Should we distinguish among the various broadband technologies?"

Imlay said that it is the ARRL's position that the definition of "broadband" should include an "absolute lower threshold, minimum bidirectional speed. It should not be a variable concept determined by technology. To do otherwise is to provide grants and loans of public funds to technologies whose benefits are, in the medium term, inadequate and which might, for example, render businesses in rural areas less competitive than those located in urban areas. It is, in other words, not useful to fund the creation of infrastructure that will be obsolete in the near term or less useful than other technologies which provide greater speeds. That simply perpetuates the status quo, where there will still, going forward, be adequately served and underserved areas. The status quo is quite obviously unacceptable to Congress, and it should be."