A Public Notice has been released offering guidance on the Open Internet enhanced transparency requirements adopted in the 2015 Open Internet Order.  As you may recall, the enhanced transparency rules, among other things, require BIAS providers to disclose expected and actual download speeds, latency, and packet loss, and also confirm the requirements surrounding disclosure at the point of sale.  BIAS providers with less than 100,000  broadband connections are exempt from these enhanced requirements of the 2015 Open Internet Order (but must still comply with the 2010 transparency requirements).

Specifically, the Public Notice (1) outlines acceptable methodologies for disclosure of network performance to satisfy the 2015 Open Internet Order enhancements; and (2) offers guidance on compliance with the point of sale disclosure requirement under the 2015 Open Internet Order.  The guidance provided in the Notice is not exhaustive (except for the guidance pertaining to using the MBA Safe Harbor), and BIAS providers may implement alternative approaches. The summary below focuses on guidance pertaining to mobile BIAS.

Network Performance Metrics

Disclosure of Network Performance Metrics

  • Actual Performance Metrics:  Providers may comply with the requirement to disclose actual speeds (download and upload), and latency, by disclosing either the Measuring Broadband American (MBA) median speed or a range of actual speeds that includes the median speed (via percentiles).  Speed ranges may be more appropriate for mobile BIAS.
  • Geographic Granularity for Actual Network Performance Metrics:  Mobile BIAS providers with access to reliable actual data on network performance may disclose actual performance metrics for each CMA in which the service is offered.
  • Expected Network Performance Metrics should not exceed actual network performance in that geographic area.  There is no corresponding requirement to disclose different expected network performance metrics in different geographic areas.
  • Peak Usage Periods may be based solely on the local time zone

Using the Measuring Broadband America (MBA) Safe Harbor

  • The FCC anticipates that the MBA program will publish its first Mobile Broadband Report in 2016.
  • Here, the Bureaus establish that “mobile BIAS providers may disclose their results from the mobile MBA program as a sufficient disclosure of actual download and upload speeds, actual latency, and actual packet loss of a service if the results satisfy the sample size criteria and if the MBA program has provided CMA-specific network performance metrics of the service in CMAs with an aggregate population of at least one half of the aggregate population of the CMAs in which the service is offered.”

Not Using the MBA Safe Harbor

  • Mobile BIAS providers that measure network performance by their own or third-party testing (rather than the MBA program) may disclose performance metrics for each CMA in which the service is offered, except that actual network performance may be aggregated among CMAs with a population density below 250 people per square mile.
  • Mobile BIAS providers may achieve a representative sampling of end users by: running measurement clients on end-user devices, by placing measurement clients in locations near a representative set of mobile broadband consumers, or by measuring performance in the network and estimating the relationship between the measured performance and that experienced by end users.

Point of Sale Requirement

  • The Bureaus clarify that disclosures must still be prominently displayed “on a publicly available website” and made at the point of sale.  In addition, it is still permissible to direct consumers to a website link at the point of sale in order to satisfy these requirements.

Please contact us with any questions.