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Broadband Providers Required to Display Point of Sale Labels

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:

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The FCC announced late this afternoon that all items required to be placed in the Online Public Inspection File (“OPIF”) between January 1 and January 31, 2023 may now be uploaded to the OPIF by January 31, 2023 and be considered timely.  The FCC released a Public Notice today announcing that the OPIF filing system has been experiencing technical difficulties since at least January 1, 2023, necessitating the extension.

This extension impacts, among other things, broadcasters’ Quarterly Issues-Programs Lists, normally due on January 10, 2023, and television stations’ 2022 annual certification of compliance with the commercial limits in children’s programming, which would normally be due on January 30, 2023.  Note that the extension does not affect the filing deadline for television stations’ 2022 Annual Children’s Television Programming Report due on January 30, 2023, because that filing is submitted via the FCC’s Licensing and Management System and then is automatically transferred into the OPIF.  Accordingly, television stations should be sure to file that Report by the normal January 30th deadline.

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The FCC’s Public Safety & Homeland Security Bureau has announced that technical updates to the EAS Test Reporting System (“ETRS”) have been completed and the ETRS is open and available to accept filings of Form One by EAS participants. Under the FCC’s EAS Rules, EAS participants must update their identifying information annually via a Form One filing. This is typically done in connection with a nationwide EAS test. However, the Federal Emergency Management Agency did not conduct such a test in 2022, and has not yet announced a 2023 nationwide test. Therefore, the Form One must be submitted independently of a test to comply with the annual updating requirement.

All broadcasters are generally required to submit a Form One, including low power FM stations, Class D noncommercial educational FM stations, and stations that are silent pursuant to a grant of Special Temporary Authority. Certain broadcasters are exempt from filing a Form One, including:

  • TV translator stations;
  • FM booster stations;
  • FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations; and
  • Stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point). Note that the hub station (or common studio or control point) must file a Form One.

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