FCC Clarifies Transparency Rule Disclosure Requirements for Broadband Service Providers | Practical Law

FCC Clarifies Transparency Rule Disclosure Requirements for Broadband Service Providers | Practical Law

The Federal Communications Commission (FCC) has released the Guidance on Open Internet Transparency Rule Requirements, which delivers new guidance on the implementation of the enhanced Transparency Rule disclosure requirements in the 2015 Open Internet Order. The guidance clarifies what information broadband providers must make available for specific technologies and service tiers that are offered to customers.

FCC Clarifies Transparency Rule Disclosure Requirements for Broadband Service Providers

by Practical Law Commercial Transactions
Law stated as of 25 May 2016 • USA (National/Federal)
The Federal Communications Commission (FCC) has released the Guidance on Open Internet Transparency Rule Requirements, which delivers new guidance on the implementation of the enhanced Transparency Rule disclosure requirements in the 2015 Open Internet Order. The guidance clarifies what information broadband providers must make available for specific technologies and service tiers that are offered to customers.
On May 19, 2016, the Federal Communications Commission (FCC) released the Guidance on Open Internet Transparency Rule Requirements (Guidance), which provides acceptable methods for disclosure of network performance. The Guidance is intended to clarify what disclosure practices will satisfy the enhanced Transparency Rule, which was adopted in the 2015 Open Internet Order (2015 Order).
In 2011, the FCC enacted the Transparency Rule to create a fairer broadband Internet market for consumers and to promote competition and investment. The Transparency Rule requires broadband Internet access service (BIAS) providers to publicly disclose accurate information that enables consumers to make informed choices (47 C.F.R. § 8.3).
The FCC's 2015 Open Internet Order enhanced the Transparency Rule by:
  • Clarifying that BIAS providers are required to disclose:
    • actual and expected download speed;
    • latency; and
    • packet loss.
  • No longer requiring BIAS providers to disclose the typical frequency of congestion.
  • Reconfirming that BIAS providers must, at a minimum, prominently display the required disclosures on a publicly available website.
The newly released Guidance provides further clarification to assist BIAS providers in fulfilling the disclosure requirements in the enhanced Transparency Rule. According to the Guidance, BIAS providers:
  • Must disclose performance characteristics for services with each:
    • technology (DSL, cable, fiber, or satellite); and
    • service tier (50 Mbps download, 10 Mbps upload, etc.).
  • Must disclose actual and expected network performance metrics (speed, latency, packet loss, etc.) in comparable formats.
  • May disclose the actual speed (both download and upload) by disclosing either:
    • the median speed; or
    • a range of actual speeds that include the median speed (for example, 25th to 75th percentile of the connection speed).
  • May disclose signal latency by disclosing either:
    • the median latency; or
    • a range of actual signal latency that include the median latency (for example 25th to 75th percentile of latency).
  • May disclose packet loss as the average packet loss.
  • May rely on local time zones for measuring the peak usage periods for their network performance metrics.
  • Do not need to disclose different expected network performance metrics for different geographic areas, if the information is not necessary for consumers to make informed choices.

Mobile Broadband America Safe Harbor

The Measuring Broadband America (MBA) safe harbor allows participating BIAS providers to disclose results from the government sponsored performance test, in place of the expected network performance metrics. Prior to the Guidance, it was unclear whether participation in the MBA safe harbor exempted providers from disclosing actual network performance metrics. The Guidance reaffirms that BIAS providers may disclose the results from the performance test instead of the actual network performance metrics, including actual download and upload speeds, actual latency, and actual packet loss.

Point of Sale Requirements

The Guidance clarifies that if a provider makes its disclosures through a website link, it must ensure that consumers actually receive the information that is relevant to their purchasing decision at all potential points of sale, including in-store, over the phone, and online. BIAS providers should ensure that their point of sale disclosure methods actually lead potential customers to the relevant disclosure information, to allow them to make informed purchasing decisions.