FCC Fails to Extend Enhanced Transparency Waiver

The FCC did not extend the small operator waiver from the Open Internet order's enhanced transparency requirements by the Dec. 15 deadline.

The FCC's Consumer and Governmental Affairs Bureau extended it last year by a year. In a sense, not extending it does not have much practical effect because the enhanced transparency rules, from which operators are being exempted, have not even gone into effect yet. But industry compliance officers and lawyers like regulatory certainty, and this is not it.

FCC chairman Tom Wheeler circulated an item extending the waiver, but commissioners could not agree on it.

The sticking point remains the sub trigger at which the waiver takes effect. Republicans want it to apply to operators with 250,000 subs or fewer, while Dems want to stick with the current, or until Dec. 15 current, 100,000 or fewer.

Bills that passed the House and Senate Communications Subcommittee raised the trigger to 250,000 and some legislators this week were pushing the FCC to extend the waiver.

The American Cable Association had been pushing for the waiver extension, so it was not pleased at the lack of regulatory certainty.

"The American Cable Association is disappointed that the FCC Chair and Commissioners did not extend the exemption from the Open Internet Order's enhanced transparency rules for small Internet Service Providers despite agreement that an extension was warranted," said ACA president Matt Polka.

"As a result, small ISPs face additional uncertainty and the potential to be subject to onerous requirements. ACA hopes that this unfortunate outcome will not stand and that the FCC will soon do what's right for small ISPs and their customers."

“We are frustrated that the FCC could not find a way forward and gain consensus in a timely manner,” said Alex Phillips, President of the Wireless Internet Service Providers Association. “We urge the Commissioners to continue to work together to reinstate the exemption at the earliest possible time. Our members want to ensure that the exemption – adopted in February 2015, extended in December 2015, strongly supported on a bipartisan basis in the House and Senate – will continue to remain in place. Unnecessary regulatory burdens and uncertainties will hinder their ability to serve nearly 4 million customers in rural communities across America.”

ACA and WISPA will probably get their wish. The waiver will likely be reinstated, and the trigger upped to 250,000 after Jan. 20, when Republicans will be in the majority. The requirement could go altogether if the Republicans scrap the Open Internet order.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.