WISPA Puts Numbers Behind Its Big Title II Exemption Ask

WASHINGTON, April 15, 2024 – Net Neutrality is largely a one-size-fits-all paradigm.

And that’s not acceptable to some broadband ISPs leading up to the Federal Communications Commission’s April 25 vote that calls for classifying all ISPs, regardless of size, as common carriers under Title II of the Communications Act.

The FCC’s rules – which fall under the rubric of Net Neutrality – would ban ISPs from blocking or throttling lawful content as well as from entering into paid prioritization arrangements – all in order to keep the Internet “fast, open, and fair,” in the words of FCC Chairwoman Jessica Rosenworcel. These bright-line regulations come with many more obligations contained in a 435-page draft order.

Since last December, WISPA ­­– The Association for Broadband Without Boundaries has sought categorical exemptions from Net Neutrality for small ISPs. But only in recent days has WISPA put some numbers behind its ask.

In a filing today, WISPA disclosed that it has asked the FCC to exempt all ISPs with 250,000 subscribers or fewer. A WISPA spokesperson confirmed that the filing was the group’s first attempt to define with numbers the scope of its proposed exemption.

WISPA’s cutoff at 250,000 would exempt the vast majority of ISPs but would include only a small minority of Internet subscribers. According to Leichtman Research Group, the 17 largest ISPs (cable, telco, and fixed wireless) had 114 million subscribers on Dec. 31, 2023. All had more than 250,000 subscribers.

A trade association that represents hundreds of smaller fixed wireless ISPs, WISPA says its member companies serve more than 9 million consumers in rural and other unserved and underserved areas

WISPA offered the FCC some alternatives. Short of a blanket exemption, WISPA urged the FCC to “permanently exempt small providers from the bright-line rules, the general conduct rule, and the new transparency requirements.”

The bright-line rules were a reference to the prohibitions on ISP blocking, throttling and paid prioritization. The general conduct rule refers to the FCC’s proposed ban on practices that “unreasonably interfere with the ability of consumers or edge providers to select, access, and use broadband Internet access service to reach one another, thus causing harm to the open Internet.”

And transparency requirements mean an ISP “shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.”

Although WISPA would like the FCC to explore its requests in a new rulemaking, it wants the 250,000-level exemption to take temporary effect while the agency conducts its analysis. WISPA also requested a permanent exemption for “broadband-only providers” from the requirement to obtain FCC approval to transfer control or assign broadband-only operations under Section 214.

The trade groups said the FCC, in the new rulemaking, should determine whether the Regulatory Flexibility Act requires the agency to exempt small ISPs from the rules proposed in the draft order. It would also like the FCC to examine the costs to small ISPs to comply with all of the regulatory obligations the FCC has imposed on ISPs since 2022, mentioning broadband consumer labels, broadband data collection, data breach reporting requirements, and digital discrimination rules.

In 2015, the FCC under Democratic Chairman Tom Wheeler voted to adopt Net Neutrality rules under Title II. But the Wheeler FCC did not provide exemptions for small ISPs. Some have speculated that the Rosenworcel FCC won’t provide any breaks to small ISPs again because it would weaken the agency’s position in court where it will likely frame Net Neutrality as a matter where the benefits to society far outweigh the costs.