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:
- The name of the service plan must be displayed at the top of the label.
- The base monthly price for the stand-alone broadband service offering must be displayed.
- If an introductory rate is displayed, the rate that applies after the introductory period must also be displayed.
- Billing/Discounts. Providers are required to display only the “retail” monthly price (i.e., the price before discounts are applied). Providers may link from the label to a webpage explaining any discounts.
- Contract Plans/Bundled Plans. ISPs offering discounts to consumers committing to a contract term must display the term length and labels must display prices for “standalone” plans. Providers may include in the “click here” section a link to discounts for bundled plans.
- Additional Charges/One-Time Fees. ISPs must display recurring charges imposed on top of the base price, along with any one-time fees paid at the time of purchase. ISPs must also disclose any charges or reductions in service for data used in excess of the amount included in the plan, identify the increment of additional data, if applicable, and disclose any additional charges imposed for exceeding monthly data allowances.
- Taxes. Under “Additional Charges & Terms,” ISPs must state that taxes will apply and may vary depending on location.
- Speed and latency metrics associated with broadband services must be disclosed (specifically, typical upload and download speeds and typical latency).
- Peak Usage Data. Providers must tie their actual speed reporting to “peak usage periods.”
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.
A PDF version of this article can be found at FCC Adopts Rules Requiring Broadband Providers to Display Point-of-Sale Labels and Proposes New Rules Promoting Equal Access to Broadband Services.