TAKEAWAYS
- The rules require internet service providers (ISPs) to prominently display labels disclosing information about broadband prices, rates, data allowances and broadband speeds.
- The Order also includes a Further Notice of Proposed Rulemaking (FNPRM) in which the FCC seeks comment on the format and content of the label, as well as potential future changes.
- In a separate rulemaking, the FCC seeks comments on how to end digital discrimination.
On November 17, 2022, the Federal Communications Commission (FCC) released a Report and Order (Order) adopting rules requiring broadband internet service providers (ISPs or providers) to prominently display labels disclosing information about broadband prices, rates, data allowances and broadband speeds. The FCC has not yet announced the effective date for ISPs to comply. The Order also includes a Further Notice of Proposed Rulemaking (FNPRM) in which the FCC seeks comment on the format and content of the label, as well as potential future changes. The comment deadline has been extended to February 16, 2023; reply comments are due by March 16, 2023.
Background
In November 2021, President Biden signed the
Infrastructure Investment and Jobs Act (Infrastructure Act) into
law. Among other things, the Infrastructure Act directed the FCC to
create regulations requiring the display of broadband consumer
labels that disclose information regarding broadband internet
service plans. The label must also "include information
regarding whether the offered price is an introductory rate and, if
so, the price the consumer will be required to pay following the
introductory period." The FCC was also required to hold public
hearings to evaluate (1) how consumers evaluate broadband internet
access service plans; and (2) whether disclosures regarding
broadband service plans are available and effective.
In response, the FCC released a Notice of Proposed Rulemaking (NPRM) in January 2022 in which it proposed requiring ISPs to disclose information to consumers by displaying labels at the point of sale. The FCC recommended basing the labels on the voluntary labels it previously approved in 2016. In the NPRM, the FCC asked whether broadband services, and consumers' use of such services, have changed enough to require modifications to the labels.
Consistent with the Infrastructure Act's mandate, the FCC held public hearings to gather feedback on the content, format and location of the labels. The FCC asked whether the label should vary depending on the consumer's interaction with the provider, e.g., in person at a store, on the phone or online. Feedback from dozens of comments showed that consumers can be confused by the pricing, terminology and complexity of internet service plans, and most commenters asked the FCC to update the 2016 labels to better help consumers comparison shop for broadband services.
The Label
The FCC's Order adopted a new, single version of the
label (for both fixed and mobile broadband service offerings) and
requires providers to display, at the point of sale, a label
containing information regarding the provider's service
offerings, prices, introductory rates, data allowances, broadband
speeds and whether the provider participates in the FCC's
Affordable Connectivity Program (ACP). The Order defines the format
in which the label must appear and the display location. It must
also be accessible for people with disabilities and should appear
in machine-readable format.
Below is an image of the label template from the FCC's Order and details outlining the content, formatting and display location requirements:
ISPs must include a link to their network management practices, a link to its privacy policy on its website, a link to the FCC's website where the Consumer and Governmental Affairs Bureau will post a glossary of terms used on the label and a link to information about the ACP. The label must indicate whether the provider participates in the ACP and must include the following statement: "The Affordable Connectivity Program (ACP) is a government program to help lower the monthly cost of internet service. To learn more about the ACP, including to find out whether you qualify, visit www.affordableconnectivity.gov." The text of the web address must be an active link to the ACP webpage.
Format
The FCC adopted the same format as the 2016 labels, which
resemble a food nutrition label. Providers may not alter or
customize the label, as such customization would undermine the
purpose of the label—to simplify comparison shopping between
providers and services. The information included in the label must
be produced in "machine-readable format," which means the
data should be provided "in a format that can be easily
processed by a computer without human intervention while ensuring
no semantic meaning is lost." The label must include a
"unique plan identifier" consisting of a unique ID for
fixed or mobile plans ("F" for fixed, "M" for
mobile), followed by the broadband provider's FCC Registration
Number, and ending with a provider-chosen string of 15 alphanumeric
characters that identify a specific plan. Labels must be accessible
to people with disabilities and must be produced in English, as
well as any other languages in which the provider markets its
services in the United States.
Point-of-Sale and
Display Location
Labels must be displayed at the "point of sale,"
which is defined in terms of time (the moment a customer
begins investigating and comparing service plans available in their
area) and location (ISP websites and any other channel
through which it sells services, including ISP-owned retail
locations, third-party owned retail location and over the phone).
On a website, as soon as a consumer enters location information,
the label must appear on the primary advertising webpage that
identifies plans available to the consumer. Finally, the actual
label must be displayed, not an icon or link to the label.
Which Providers Are Subject to the Label Requirement?
Which Plans?
The Order requires all "broadband Internet access
service plans" to display the label. Broadband internet access
service is defined 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." The definition also includes any service
"providing a functional equivalent of the service." The
FCC clarified that enterprise service offerings or special access
services that are not "mass-market retail services" are
not subject to the label requirement. ISPs participating in the
E-Rate and Rural Health Care programs are subject to the
label requirement.
Providers must display labels for plans offered to new customers, but do not have to create and display labels for services that are used by current customers but are not available to new customers. Labels must be archived for two years. ISPs are not required to notify consumers of changes to the terms and conditions in the displayed labels.
Further Notice of Proposed Rulemaking
The FNPRM seeks comment on the contents of the label and
whether it should consider any updates to the label format. Among
other inquiries, the FCC seeks comment on whether the label should
include more granular data about a provider's network
management practices, its privacy policies or its cybersecurity
practices. The FCC asks whether there are better ways to measure
speed and latency when disclosing performance information, whether
the label should include a reliability measure and whether the
label should be made available in languages other than those in
which a provider markets its service. The FCC also requests comment
on pricing information for bundles and asks whether an interactive
label may be useful.
The FCC has not yet announced the effective date of the label, but has established a six-month period following an announcement in the Federal Register for most providers to comply with the new label requirements. Providers with 100,000 or fewer subscriber lines will be given one year to comply.
Ending Digital Discrimination
On December 22, 2022, the FCC released a Notice of Proposed Rulemaking seeking comments
on proposed rules to end digital discrimination and promote equal
access to broadband internet services.
Background
In addition to point-of-sale labels, the Infrastructure
Act addressed the prevention and elimination of digital
discrimination and directed the FCC to "facilitate equal
access to broadband internet access service." The
Infrastructure Act requires the FCC to consider how to (1) prevent
digital discrimination of access to broadband service based on
income level, race, ethnicity, color, religion or national origin;
and (2) identify what the FCC can do to eliminate discrimination.
In response, the FCC created the Communications Equity and
Diversity Council in June 2021 to help improve access to digital
communication services without discrimination. In March 2022, the
FCC released a Notice of Inquiry launching the Digital
Discrimination proceeding and seeking comment on rules the FCC
should adopt to end digital discrimination.
Defining "Digital Discrimination of
Access"
The FCC proposes defining "digital discrimination of
access" to broadband internet service as (1) "policies or
practices, not justified by genuine issues of technical or economic
feasibility, that differentially impact consumers' access to
broadband internet access service based on their income level,
race, ethnicity, color, religion, or national origin"; and/or
(2) "policies or practices, not justified by genuine issues of
technical or economic feasibility, that are intended to
differentially impact consumers' access to [internet] based on
their income level, race, ethnicity, color, religion, or national
origin." The FCC seeks comment on the definition, whether the
definition should focus on a provider's intent, actions or
omissions, and whether to adopt the definition based on disparate
impact (i.e., discriminatory effect), disparate treatment (i.e.,
discriminatory intent) or both.
Revising the Informal Consumer Complaint Process
The FCC seeks comment on how best to revise its informal
consumer complaint process to accept digital discrimination
complaints and asks whether it should establish a process
addressing formal complaints. The FCC proposes to add a portal
dedicated to digital discrimination complaints, collect voluntary
demographic information from complainant and create a process for
organizations to submit digital discrimination complaints. The FCC
also proposes to make anonymous complaint data publicly available
and asks how best to make these data available and useful, while
still protecting complainant's privacy.
Adopting New Rules
In the NPRM, the FCC seeks comment on the rules it should
adopt to fulfill its goal of ending digital discrimination. The FCC
asks whether it should adopt a broad prohibition on digital
discrimination, and whether a prohibition should be accompanied by
a list of specific prohibited practices. The FCC asks whether it
should adopt a disparate impact framework (a test to determine
unintentional discrimination), a disparate treatment framework (a
means of evaluating claims of intentional discrimination) or an
entirely different approach altogether. The FCC seeks comment on
what punishments or remedies it could impose and award and asks
whether monetary fines would be appropriate.
Model Policies for States and Localities
The FCC seeks comment on its proposal to adopt guidelines
for state and localities outlining model policies and "best
practices" to end digital discrimination and promote digital
equity. The FCC asks whether these policies and guidelines
sufficiently cover the scope of issues, whether they provide states
and localities with adequate resources, whether any policies should
be added and what additional support the FCC can provide to states,
localities and internet service providers. You may find a full copy
of "Model Policies and Best Practices to Prevent Digital
Discrimination by ISPs" in Appendix B of the Notice of Proposed Rulemaking.
Comments will be due 30 days after the NPRM is published in the Federal Register and reply comments will be due 60 days after publication.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.