Wisper ISP Responds To Conexon, Says FCC Can’t Touch Wisper’s ETC Designation In Kansas

June 26, 2019 – Wisper ISP, Inc. has filed a response to Conexon, LLC’s opposition to Wisper’s petition for waiver of the February 25, 2019 deadline for certifying to the Federal Communications Commission its designation as an Eligible Telecommunications Carrier (ETC) in the state of Oklahoma.[1]

For a number of reasons, Wisper says the FCC should dismiss or deny Conexon’s opposition and grant the waiver. Wisper argues Conexon’s opposition is procedurally defective because the FCC did not solicit comments or oppositions to the Wisper’s petition. Wisper also claims Conexon lacks standing to challenge the petition because as a vendor, Conexon “did not participate in the Connect America Fund (CAF) Phase II auction and has no direct interest in the outcome of Wisper’s waiver request.”

But, this is not the part of Wisper’s reply to Conexon’s opposition that I’m interested in, or the part this blog post will cover.

Instead, this blog will focus on Wisper’s response to the portions of Conexon’s opposition that addresses Wisper’s Kansas ETC designation.[2] In its opposition, Conexon asked the FCC to declare that Wisper is in default of its CAF Phase II compliance obligations in the state of Kansas because Wisper misstated its broadband speed obligations in its Kansas ETC application, which was granted in February 2019.[3]

If you recall, Wisper filed a petition for designation as an ETC with the Kansas Corporation Commission (KCC) three months after the CAF II auction closed. Wisper stated it is obligated to provide 25/3 Mbps broadband service in Kansas. Wisper made this statement in its ETC petition even though Wisper only placed bids in Kansas for the CAF II auction above baseline performance tier – speeds of 100/20 Mbps and usage allowance of 2 TB. It didn’t place any bids requiring 25/3 Mbps.[4] Wisper was eventually designated an ETC in its CAF II areas in Kansas.

Conexon, in its opposition to Wisper’s waiver request, asked the FCC to declare that Wisper is in default of its CAF Phase II compliance obligations in Kansas because Wisper misstated its broadband speed obligations.

Here’s what Wisper has to say about Conexon’s argument that Wisper should be declared to be in default:

First, the Commission lacks authority to declare Wisper in default of its state obligations in Kansas – only the State of Kansas can do that.[5]

Wisper made clear in a response to a staff request for information that Wisper would be providing 100 Mbps download/20 Mbps upload speeds in Kansas.[6]

Declaring Wisper in default for not correcting the broadband speeds it has committed to provide – which is a matter of record before the Commission and subject to official notice in Kansas – would punish the unserved rural consumers of Kansas by removing CAF support.[7]

Conexon would rather see that unjust and injurious result than privately suggesting to Wisper that its ETC application may contain an error.[8]

OK, so Wisper says it told KCC staff that it would be providing 100/20 Mbps service in Kansas. This was purportedly made in response to a staff request. To be clear, Wisper should have told KCC staff it is required to or must provide 100/20 Mbps service. These details matter. But, if Wisper really did tell KCC staff this, why did Wisper then file an ETC application that included incorrect broadband speed obligations? Maybe Wisper really did say this to KCC staff, but how about telling everyone when and where – was it on a conference call on a certain date or was it provided in an email to certain staff? Come on Wisper, you can do better than this.

Wisper filed its initial ETC application on December 7, 2018, and then filed a final, amended ETC application on December 19, 2018. During the time from the filing of Wisper’s initial application to the filing of its final application there were numerous communications and exchanges of information between Wisper and KCC staff. So, as claimed in its recently-filed reply, if Wisper told KCC staff that it would be providing 100/20 Mbps service in Kansas, why wasn’t this information included on the final ETC application?

There were eight documents filed in KCC Docket 19-WIIZ-225-ETC, which is the Wisper ETC designation proceeding. None of those documents mention anything about Wisper telling KCC staff that Wisper will be providing 100 Mbps download/20 Mbps upload speeds in Kansas. But here’s what Wisper did say to KCC staff in in Section IV, B of Wisper’s revised Kansas ETC application:

In the CAF Phase II auction, the FCC permitted bidders to select from among four performance tiers (for speed and data usage) and two latency tiers. For its Kansas Census Blocks, Wisper committed to offer 25 Mbps download and 3 Mbps upload. In all designated Census Blocks, Wisper will provide low-latency service of 100 milliseconds or better.[9]

Maybe Wisper did tell KCC staff it would provide 100/20 Mbps broadband service, or maybe it didn’t. There is nothing in the official record to corroborate Wisper’s claims.

Further, Wisper’s actions and claims about how it handled its Kansas ETC application should be viewed in the broader context of all of its ETC applications. Wisper was not an ETC in any of the six states where it won CAF II auction funding. In all six of its ETC applications, Wisper told every state regulatory commission that its CAF II broadband performance obligation was to provide only 25/3 Mbps broadband service. Wisper corrected its ETC applications in every state except Kansas. Apparently, Wisper thought that telling KCC staff it would be providing 100/20 Mbps service was enough.

There are a few theories on what Wisper is really trying to do here. There are likely a few other WISPs that won CAF II auction funding that will try to do the same thing. Maybe I’ll go over that in a future blog post.

But for now, here’s what I think should happen. Rather, here are a few options for what could happen next: (1) The KCC should issue an information request that requires Wisper to address the allegations that it provided erroneous information in its ETC application, and provide Wisper an opportunity to file to amend its ETC designation: (2) Wisper, on its own accord, should petition the KCC to amend its ETC designation by correcting its broadband speed obligations in Kansas; (3) A public interest organization in Kansas should petition the KCC to investigate Wisper’s actions to determine whether Wisper purposely misled the KCC; or (4) A public interest organization in Kansas should petition the KCC to require Wisper to amend its ETC designation.

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[1] Connect America Fund, WC Docket No. 10-90, Connect America Fund Phase II Auction, AU Docket No. 17-182, ETC Annual Report and Certifications, WC Docket No. 14-58, Reply Of Wisper ISP, Inc. To Opposition Of Conexon, LLC To Petition For Waiver Of Deadline For ETC Designation (June 26, 2019) (Wisper Reply), available at https://ecfsapi.fcc.gov/file/10626299628015/Reply%20of%20Wisper%20ISP%2C%20Inc..pdf.

[2] See Connect America Fund, WC Docket No. 10-90, Connect America Fund Phase II Auction, AU Docket No. 17-182, ETC Annual Report and Certifications, WC Docket No. 14-58, Opposition Of Conexon, LLC To Wisper ISP Inc. Petition For Waiver Of Deadline For ETC Designation (June 12, 2019) (Conexon Opposition), available at https://www.fcc.gov/ecfs/filing/106120494418206.

[3] In the Matter of the Application for Wisper ISP Inc. For Designation as an Eligible Telecommunications Carrier for Purposes of Receiving Federal Universal Service Support From the FCC Connect America Fund - Phase II, KCC Docket No. 19-WIIZ-225-ETC, Order Granting Eligible Telecommunications Carrier Status (Feb. 14, 2019).

[4] You can do your own due diligence on Wisper’s CAF II auction bids and winning bids here: https://auctiondata.fcc.gov/public/projects/auction903.

[5] Wisper Reply at p. 12.

[6] Wisper Reply at p. 13.

[7] Wisper Reply at p. 13.

[8] Wisper Reply at p. 13.

[9] Application for Designation as an Eligible Telecommunications Carrier for Purposes of Receiving Federal Universal Service Support From the FCC Connect America Fund – Phase II, KCC Docket No. 19-WIIZ-225-ETC, Application Of Wisper ISP Inc. For Designation As An Eligible Telecommunications Carrier, Section IV, B, p. 13 (Dec. 19, 2018).