On November 17, 2022, the FCC released a Report and Order (Order) and Further Notice of Proposed Rulemaking (FNPRM) in the matter of Empowering Broadband Consumers Through Transparency. This Order and FNPRM are in response to the 2021 Infrastructure and Jobs Act (Act) and its direction to the FCC to require broadband Internet Service Providers (ISPs) to display, in the form of labels, certain specific information regarding their internet service plans. The Act directs the FCC, not later than one year after the enactment of the ACT, to promulgate regulations to require the display of broadband consumer labels as described by the FCC in a Public Notice issued in April of 2016. The April, 2016 disclosure requirements were proposed by the FCC’s Consumer Advisory Committee and found to be an acceptable approach to insuring that consumers have access to information regarding internet service plans that is clear and easy to read – similar to a nutrition label – and allows consumers to easily compare services of different providers.
On January 27, 2022, the FCC released a Notice of Proposed Rulemaking (NPRM) to further implement the consumer disclosure requirements of the Act. In this NPRM the FCC sought comment on whether broadband service offerings and consumers’ use of broadband services have changed sufficiently since 2016 to require changes to the content and/or format of the consumer labels and specifically, where labels should be displayed to best inform consumers. The FCC conducted three public hearings to receive input from various stakeholders regarding the content, format, and location of consumer labels. Additionally, the NPRM seeks comment on the appropriate definition of “point of sale” for purposes of the label requirement and how introductory rates impact a consumer’s decision to purchase broadband service and what information should be made available regarding introductory rates.
In the November 17, 2022, Order, based on input received in the January, 27,2022 NPRM, The FCC adopted a new broadband label in compliance with the requirements of the Act. The new consumer broadband label must be displayed by ISPs at the point of sale and must contain critical information about a provider’s service offerings including pricing information, introductory rates, data allowances, performance metrics, and whether the provider participates in the Affordable Connectivity Program (ACP). The following are some of the key aspects of the Order:
* The broadband label requirement applies to broadband internet access service as currently defined in the FCC’s rules as ” a mass market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service”.
* Unlike the 2016 label requirements, the new rules include the same label requirements for both fixed and mobile broadband service offerings.
* The Order requires ISPs to display a label for each stand-alone service they currently offer and the specific Service Plan’s name must be displayed.
* The unbundled retail price of each service offering must be displayed. (The stand-alone price, not including video or voice)
* If the label shows an introductory rate, the label must also show the rate that will apply after the introductory period. Service discounts are not required to be listed on the label but the provider may include a link from the label to a webpage explaining available discounts.
* ISPs that offer a discount for consumers that commit to a contract term must display the length of the term on the consumer label.
* Regarding Bundled Plans, the Order requires that only stand-alone service must be displayed on a label. Providers can include a link to a webpage where bundled service discounts are described.
* The label must describe any recurring or one-time fees the provider imposes on top of the base price.
* Providers must disclose any charges or reductions in service for any data used in excess of the amount included in the plan.
* Providers are required to disclose on the label for each service the speed and latency metrics for each service offering.
* Providers are required to include a link on the label to their network management practices.
* Providers are required to include a link in their labels to information about the ACP and to indicate if they participate in the ACP.
* The Order requires that providers include at the bottom of each label a link to the Commission’s website where consumers can have access to a glossary of terms used on the label.
* The Order adopts the format for labels from 2016 so that they resemble the well-known food nutrition labels. Additionally, labels must be accessible to people with disabilities at all points of sale. Points of sale include ISP websites and any other channel through which service is sold, including ISP-owned retail locations, third party retail locations, and over the phone.
* Labels must be displayed in English and any other languages in which the provider markets its services.
The Order includes a Broadband Label Template which can be seen below.
Broadband Label Sample:
In regard to the implementation requirements of the new rules discussed above, the Order adopts a bi-furcated approach. For providers with more than 100,000 subscriber lines, the Order requires compliance with the new rules within six months following the announcement in the Federal Register that OMB has completed its review of the rules. Providers with 100,000 or fewer subscriber lines have a one year implementation period after OMB review.
In the FNPRM, the FCC seeks comment on issues related to more comprehensive pricing information, bundled plans, label accessibility, performance characteristics, service reliability, cybersecurity, network management, privacy issues, and whether labels should be available in multiple languages. Originally comments and reply comments on the FNPRM were due on or before January 17, 2023, and February 14, 2023 respectively. In response to numerous requests by interested parties, a 30 day extension was granted. As a result, comments and reply comments in the FNPRM are now due on or before February 16, 2023, and March 16, 2023 respectively.
