Senate Commerce Committee Okays Small Operator Transparency Exemption

Substitute bill mirrors house version 250,000-sub cut-off, five-year sunset

The Senate Commerce Committee has approved a compromise version of S. 2283, the Small Business Broadband Deployment Act of 2015, which squares it with the already-passed House version.

The bill, a version of which passed the House unanimously in March, extends the FCC's exemption of smaller ISPs from the enhanced transparency rules under the FCC's new Open Internet order, which a federal court upheld this week. Like the House version, the Senate bill now has a five-year sunset on the exemption and a lower trigger for that exemption than Republicans and ISPs had wanted.

But that was only after a new version was substituted before the committee vote.

Unlike the House version of the bill, which defined small businesses as ISPs with not more than 250,000 subs (itself a change from the FCC's proposed definition of not more than 100,000), the Senate bill that was originally being marked up Wednesday defined small business as not more than 500,000 subs (or 1,500 employees). The house bill also had a five-year sunset, but the Senate bill had no such sunset.

The House version that initially passed out of the Communications Subcommittee also defined small businesses as 500,000 subs or fewer and included a 1,500-employees-and-below figure as a trigger for the exemption. Smaller cable operators and Republicans backed that version, which passed out of the subcommittee but without bipartisan support.

The final version, with the 250,000-sub trigger—and a five-year sunset—was a compromise between that and a Democratic proposal that would have set the cut-off at 100,000.

The Senate bill approved out of committee got the same adjusting, with the House compromise version substituted for the original and approved by voice vote, and a provision—offered as an amendment—that would have set the trigger at 100,000 deleted.

“This legislation creates a needless loophole in the Open Internet Order," said Joshua Stager, policy counsel for New America’s Open Technology Institute (OTI). "To weaken that order just one day after it was upheld by a federal court is an affront to the millions of Americans who asked for these rules. The transparency rules help ensure a level playing field for small businesses to compete in the online marketplace—which is why so many small businesses asked the FCC to create these rules in the first place."

New America's funders include both ISPs and edge providers.