August 14, 2019 – Conexon, LLC has filed a written ex parte that supports its opposition to the petition filed by Wisper ISP, Inc. for waiver of the FCC’s deadline for CAF II auction winners to obtain eligible telecommunications carrier (ETC) designation.[1]

Conexon’s recent FCC ex parte letter contains new information derived from transcripts of Wisper’s hearing before the Oklahoma Corporation Commission (OCC) that Conexon believes should be used to evaluate the merits of Wisper’s waiver petition. Specifically, Conexon claims that new information proves that Wisper made a strategic decision to deliberately delay the filing of its ETC application in Oklahoma. Information from the transcripts also show that Wisper may have made deliberate misrepresentations to the OCC and the FCC.

First, it’s necessary to provide some background. Wisper was a winning bidder in six states in the CAF II auction – it received the second largest total amount of 10-year support.[2] Because Wisper was not an ETC at the time, the FCC’s rules required it to obtain ETC designation within 180 days of the FCC Public Notice announcing Wisper as a winning bidder.[3]

Wisper is seeking waiver of the 180-day deadline (February 25, 2019) because its application for designation as an ETC in the state of Oklahoma is still pending. It should be noted that Wisper’s waiver petition is not publicly available on the FCC’s website. Knowledge of the existence of Wisper’s waiver petition was only made public when Conexon filed its opposition. Where’s the petition?!

There’s a lot going on in Conexon’s new ex parte, and it helps illuminate the entire situation. The battle between Conexon and Wisper is playing out before the Oklahoma Commission, and it is only because of this that details about Wisper’s FCC petition have come to light.

This blog post will cover one issue that Conexon claims the OCC hearing transcripts show: In a supplement to its petition for waiver of the 180-day ETC designation deadline filed with the FCC, Wisper misrepresented or provided erroneous guidance from OCC staff as to the ETC designation process in Oklahoma. (There’s more dirt in Conexon’s ex parte, but I’ll cover it in separate blogs.)

Transcript Of Wisper’s OCC Hearing – Mistake Or Misrepresentation Of The Oklahoma ETC Designation Process?

In its ex parte letter, Conexon states that portions of the transcript from the OCC’s Prehearing Conference and Merits Hearing regarding Wisper’s Oklahoma ETC application are relevant to the merits of Wisper’s FCC waiver petition.

In short, Conexon claims the transcript shows that Wisper misrepresented or made a mistake, to the FCC, about guidance from OCC staff as to the ETC designation process in Oklahoma. Wisper claimed OCC staff told Wisper an ETC application can be granted in 30 days, with most usually granted two weeks after they are filed.

Here’s the actually language from Wisper’s supplement to its petition for waiver of the 180-day deadline filed with the FCC:

Several factors informed Wisper’s decision to file at this time. First, beginning in October 2018, Wisper’s counsel had been in contact with OCC staff. OCC staff informed counsel that the OCC’s rules automatically grant ETC applications thirty days after publication, which usually can occur about two weeks after the application was filed. Counsel was further informed that the timing for ETC approvals generally follows the timing set out for CLEC approvals in OCC Rule165:5-7-53. That rule states in relevant part “[n]o certificate shall issue until the expiration of thirty (30) days from the date of first publication of notice. If no protest is filed, the Commission may issue the certificate without a hearing. If a written objection to the application is filed within thirty-day period, the application shall be set for hearing...” In reliance on OCC staff advice and the streamlined process for unopposed ETC applications, Wisper reasonably believed that its ETC application would be approved in sufficient time to meet the FCC’s February 25, 2019 deadline. Wisper further understood that based on the timelines for approval of other CAF II ETC applications in Oklahoma, there appeared to be sufficient time for processing and approval.[4]

In cross-examination testimony, a regulatory analyst with the OCC’s Public Utility Division testified that “Wisper’s representations were incorrect and that the same do not accurately reflect the OCC’s ETC designation process.”[5] The OCC regulatory analyst “further testified that she does not believe any member of the OCC’s staff would inform an ETC applicant that the OCC’s ETC designation process is consistent with Wisper’s representations contained within [the supplement to its waiver petition]” filed with the FCC.[6]

So if the OCC’s regulatory analyst testified that OCC staff would never tell an ETC applicant that a petition can be automatically granted in 30 days, or sometimes two weeks, why did Wisper tell the FCC that this is what OCC staff told Wisper? Interesting, right?

One more thing from that paragraph taken from Wisper’s supplement to its FCC waiver petition. Wisper stated that it thought ETC designation in Oklahoma would not take too long “based on the timelines for approval of other CAF II ETC applications in Oklahoma.” In its ex parte letter, Conexon shows that the ETC designation process for other CAF II auction winners took anywhere from 3-10 months, not the 30 days/two weeks claimed by Wisper.

This is all really strange. Why would Wisper claim the Oklahoma Corporation Commission staff incorrectly informed Wisper about the Oklahoma ETC designation process? What exactly is happening here? Did Wisper get confused, or misunderstand certain information it received from the OCC? Did Wisper try to pull a “fast one” on the FCC? To be sure, I’ve helped companies obtain ETC designation in various states, and it can be a long and arduous process. If you aren’t familiar with a state’s ETC designation process and requirements, it can get confusing. That being said, one thing you should always do is not wait to file your application because it almost always takes longer than you think it will. A state commission will generally want clarification and additional details on the information contained in your application. In the case of Wisper’s Oklahoma ETC designation petition, it was up against a hard deadline, so it makes zero sense to wait so long to file the initial application. There are other irregularities with respect to Wisper’s decisions and actions, which I’ll cover in one or more blog posts. At first it seemed Wisper was attempting to game the system, then it appeared maybe Wisper or its counsel just didn’t know what it was doing, but now the evidence is piling up on the side that weighs toward intentional action.

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[1] Letter to Marlene Dortch, Secretary, FCC, from Jonathan Chambers, Partner, Conexon, LLC, WC Docket No. 10-90, AU Docket No. 17-182, WC Docket No. 14-58 (Aug. 14, 2019) (Conexon Ex Parte).

[2] Connect America Fund Phase II Auction (Auction 903) Closes Winning Bidders Announced FCC Form 683 Due October 15, 2018, AU Docket No. 17-182, WC Docket No. 10-90, Public Notice, DA 18-887, Attachment A (Aug. 28, 2018), https://www.fcc.gov/document/connect-america-auction-expand-broadband-713176-rural-locations.

[3] At the time of the CAF II auction, Wisper had not been designated as an ETC in any state. An entity did not have to be an ETC to participate in the CAF II auction, but if such an entity won support, it was required under the FCC’s rules to obtain ETC designation within 180 days of the FCC Public Notice announcing the entity as a winning bidder in the auction. The notice announcing CAF II auction winners was released on August 28, 2018, which made the ETC designation deadline February 25, 2019.

[4] Wisper ISP Inc. Application for Designation as an Eligible Telecommunications Carrier for Purposes of Receiving Federal Universal Service Support From the FCC Connect America Fund – Phase II, Docket No. PUD 201800154, Oklahoma Corporation Commission, Summary Of Merits Hearing Testimony Of Jenny Dillon On Behalf Of The Public Utility Division, Cross-Examination, p. 1-2 (July 25, 2019), (citing Wisper supplement to FCC waiver petition).

[5] Id. at p. 2.

[6] Id.