FCC Adopts Broadband Consumer Label Rules

On November 17, 2022, the FCC released a Report and Order and Further Notice of Proposed Rulemaking adopting rules for a new broadband consumer label and seeking comment on further steps the FCC can take to ensure that consumers have the information they need to make informed broadband service purchasing decisions.  The Report and Order is released pursuant to the Infrastructure Investment and Jobs Act (“IIJA”), which required the FCC to adopt rules mandating that broadband Internet service providers display labels providing certain information regarding their broadband access plans.

The rules apply to both fixed and mobile providers of broadband Internet service.

Report and Order

The Report and Order requires broadband providers to create broadband labels that resemble the form of a nutrition label (consistent with the template displayed on Page 6) and display them at the point of sale.  Specifically, the Report and Order mandates the following:

• Providers Subject to the Label Requirement – Providers that offer “broadband Internet access service plans” are required to create and display the new broadband labels.  The FCC defines “broadband Internet access service” 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.” This definition also includes any service that the Commission finds to be providing a functional equivalent of broadband Internet access service.  It does not apply to enterprise service offerings or special access services that are not “mass-market retail services.”
• One Label for Fixed and Mobile – the label will have the same information and be in the same format for both fixed and mobile service offerings.  The label requirement only applies to standalone broadband service offerings.  Bundled plans that include an internet service are not required to have a label.
• Content – The label is required to have information on pricing and performance as follows:
  • Pricing: the following pricing information is required:
    • The Service Plan Name – must be located at the top of the label.  Providers are not required to identify the plan by its speed tier, and can instead identify it consistent with their marketing.
    • Monthly Price – providers must display the base monthly price for the stand-alone broadband service (i.e. not bundled with other services).  The listed price should exclude taxes or fees.
    • Introductory Rates – if an introductory rate is displayed, providers also must display the rate that applies after the introductory period.  Providers also must state the length of the introductory period or state the date on which it will end.
    • Billing and Other Discounts – providers must display the “retail” monthly broadband price (i.e. the price before applying discounts such as those for paperless billing, automatic payments, etc.).  Providers may provide a link in the label explaining the discounts or separately inform consumers of discounts as part of their marketing materials.
    • Contract Plans – if providers offer a discount for consumers who commit to a contract term, the term length must be displayed on the label.
    • Bundled Plans – the label must be displayed for standalone broadband service; providers offering internet access service bundled with other services may note that via a link where they describe other discounts.  They may also describe it in other marketing materials.
    • Additional Monthly Charges and One-Time Fees – Providers are required to list all recurring monthly fees (fees the providers charge at their discretion i.e. not government mandated) and they must be listed using a simple, accurate, easy-to-understand name that enables customers to understand which charges are part of the provider’s rate structure and which are government assessments.  This section also must provide the name and cost of each one-time fee assessed by the provider both when the customer signs up for service (i.e. new modem fees, activation fees, deposits, installation fees, late payment charges, etc.), and if the customer cancels their broadband service before the end of the term, which also must include a link to an explanation of when such a fee is triggered.  Finally, providers also must disclose any charges or reductions in service for using data in excess of the amount included in the plan, the increment of additional data, and additional charges for exceeding the monthly data allowance.
    • Taxes – Providers must state under “Additional Charges & Terms” that taxes will apply and that they may vary depending on location.
  • Performance Information: the label must contain speed and latency information, including their typical upload and download speeds, and typical latency.
    • Fixed Providers: Fixed broadband providers that participate in the Measuring Broadband America program may disclose their results as sufficient representation of actual performance their customers can expect to experience for the relevant speed tier.  Fixed providers that do not participate may use the methodology from the MBA program to measure actual performance or may disclose actual performance based upon internal testing, consumer speed test data, or other data regarding network performance, including reliable, relevant data from third-party sources.
    • Mobile Providers: Mobile broadband providers that have access to reliable information on network performance may disclose the results of their own or third-party testing.  If they do not have access to such network performance data, mobile providers may disclose a Typical Speed Range representing the range of speeds and latency that most of their consumers can expect for each technology and service tier offered.
    • The FCC declined to require disclosure of peak usage data or packet loss.
  • Network Management Practices: Providers must provide a link to their network management practices.
  • Affordable Connectivity Program: Providers must provide a link in their labels to information about the ACP and indicate whether the provider is participating in the ACP.  Providers are also required to 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 affordableconnectivity.gov.” The link must be an active link.
  • Privacy Policy: Providers must include a link to their privacy policy on their website.
  • Consumer Education/FCC Glossary: Providers are required to provide a link at the bottom of the label to the Commission’s website where there will be a web page with a glossary of terms used on the label.
  • Format: Labels are required to resemble a nutrition label, must be in a machine-readable format, and must contain unique identifiers for each plan.  Labels must be accessible for individuals with disabilities at all points of sale and must be available in English and any other languages in which the IP markets its services in the United States.
  • Point of Sale and Label Display Location: Point of sale is defined as the moment a consumer begins to investigate and compare broadband service plans available to them at their location.  This includes the following:
    • Websites: Providers are required to display the actual labels on their websites, including their primary webpage. It cannot merely be an icon or link to the label in close proximity to the associated plan advertisement.  The FCC has not required a particular size or font, but providers must ensure the label is prominently displayed on any device.
    • Alternate Sales Channels: Providers are required to make the labels available to consumers at alternate sales channels such as their retail locations, third-party owned retail locations, or over the phone.  This requirement does not mean that the label be provided in hard copy form (though providers can do so if they desire), providers may satisfy this in many forms, for example by directing the consumer to a specific web page on which the label appears through Internet access in the retail location, providing the customer with a printed URL or QR code, or orally providing information from the label over the phone
    • E-Rate and Rural Healthcare Providers: Point of sale for E-Rate and RHC programs is the time when a provider submits its bid to a program participant.  These providers are required to provide a label along with any competitive bids submitted through the competitive bidding process.  If there is an instance where a provider provides service without a bid, it must provide the label with the first invoice it submits to the applicant.
    • Label Display on Customer Online Accounts: Providers that offer online account portals are required to make each customer’s label easily accessible to the customer in the portal (unless the customer subscribes to a grandfathered plan as described below). Providers are not required to include the label in the monthly bill.
  • Grandfathered Plans and Archive of Labels: Providers are only required to create labels for plans currently offered to new customers, not for services used by current customers that are no longer available to new customers. Providers are required to archive labels for at least 2 years after the service plan is no longer offered to new customers and no longer displayed at the point of sale.

Implementation Timeline

Large providers (more than 100,000 subscriber lines) are required to implement the new label requirements within six months of the FCC announcing that OMB has approved the new requirements.  Small providers (100,000 or fewer subscriber lines) are required to implement the new label requirements within one year of the FCC announcing that OMB has approved the new requirements.

Further Notice of Proposed Rulemaking

In the FNPRM the FCC seeks comment on the following:

• Accessibility and Language: The Order requires that providers post information on their website and strongly encourages them to use the most current version of the Web Content Accessibility Guidelines.  The FCC seeks comment on whether it should adopt specific criteria based on this standard.  Additionally, the FCC seeks comment on whether ISPs should be required to make the label available in languages other than those in which they market their services.
• Price Information: The FCC seeks comment on whether it should require providers to display discounts and other variables in future versions of the label.  They also ask if there is a way to ensure point-of-sales labels do not overwhelm consumers with too much information. They also seek comment on pricing information for bundles and whether there are benefits to providing labels for bundles.
• Performance Information: The FCC seeks comment on whether there are more appropriate ways to measure speed and latency. They also seek comment on whether adding a reliability measure would help improve the consumer ability to evaluate broadband plans.  Finally, the FCC seeks comment on including cybersecurity practices in the label or at the point of sale.
• Network Management and Privacy: The FCC seeks comment on whether the network management practices should include more specific disclosures about blocking, throttling, and paid prioritization.  The FCC also seeks comment on whether providers’ privacy policies, or portions thereof, should be contained in the label itself.
• Format Issues: The FCC seeks comment on whether the label should be interactive and include drop down menus, and if there is additional information that should be include in a drop down menu. The FCC also seeks comment on whether it should adopt a style guide and implementation tools.
• Labels Submitted to the Commission: The FCC seeks comment on whether providers should be allowed to submit labels to the FCC and whether it should be responsible for maintain a label database that is posted on the FCC’s website.

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