FCC Resolves Broadband Label Petitions for Recon.

On August 29, 2023, the FCC released an Order on Reconsideration resolving three petitions for reconsideration that asked the Commission to clarify and/or reconsider certain broadband label requirements.  In the Order on Reconsideration, the FCC:

  1. Affirmed the Provider Requirement to Itemize Fees:  The FCC affirmed that providers are required to itemize the fees that they add to base monthly prices, including fees related to government programs they choose to pass through to consumers.  Thus, the FCC rejected ACA Connects request that providers merely state that “additional fees may apply” or that “fees may vary by location.”  If a provider does not impose additional discretionary fees on top of the base monthly price, but instead incorporates them into the monthly price, the provider can state “None” on the label template.
  2. Affirmed the Provider Requirement to Describe Data Allowances:  The FCC affirmed that providers should keep their descriptions of data allowances simple, and only describe the details in their more complete service descriptions in their advertising materials and on their websites.  Thus, CTIA’s request that providers be able to use multiple lines of data allowance descriptions on the label is denied.  The FCC did clarify that, in disclosing charges for additional data or deductions in service for using data in excess of the amount on the plan, providers are required to associate the increments of additional data and additional charges with the data tier of the data cap on the label.  To the extent that providers wish to provide additional information on data included in the plan, the FCC reminds providers that they may include hyperlinks to their websites with that additional information.
  3. Affirms that Enterprise Offerings are Not Covered by the Label Requirement:  The FCC affirmed that enterprise offerings are not mass-market retail services and thus are not covered by the label requirement.  The FCC clarified that footnote 36, on E-Rate and the RHC competitive bidding process, did not contradict that decision and the FCC did not intend to require broadband labels for all services in the E-Rate and RHC programs.  The FCC also affirmed that the enterprise/special access exemption typically applies when the service offering is customized for the beneficiary through individually negotiated agreements.  The FCC reiterated, however, that the label requirements would apply to mass-market services offered through the E-Rate and RHC programs.
  4. Reconsidered the Documentation Requirement for Interactions with Consumers at Alternate Sales Channels:  The FCC reconsidered its requirement that providers document each instance when they direct a consumer to a label at an alternative sales channel and retain such documentation for two years.  Instead, the FCC clarified that this requirement will be deemed satisfied if:  1) the provider establishes the business practices and processes it will follow in distributing the label through alternative sales channels; 2) retains training materials and related business practice documentation for two years; and 3) provides such information to the Commission upon request, within 30 days.
  5. Clarified that Providers Have Flexibility in Identifying Taxes:  The FCC clarified that providers have flexibility to state “taxes included” or utilize similar language in the label template when they have chosen to include taxes as part of its base price.  This only applies when the provider has included all taxes in their monthly base price and the FCC reiterates that the provider may not rely on general statements that taxes may apply if they are not included in the base price.
  6. Revised the Effective Date:  The FCC harmonized the compliance date.  While the Order on Reconsideration will be effective on publication, compliance will not be required until one year following completion of OMB review of section 8.1(a)(7) for providers with 100,000 or fewer subscribers or six months following completion of OMB review and modification of section 8.1(a)(7) for all other providers.  The FCC notes that a forthcoming Public Notice by the Consumer and Governmental Affairs Bureau will announce the compliance date.

For additional information please see previous blog post FCC Publishes Broadband Label Petitions for Recon. in Fed. Reg.

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