On November 17, 2022, the FCC issued new broadband labeling rules that require Internet Service Providers (ISPs) to publish broadband “nutrition labels” in a standardized format informing customers of the pricing, performance, fees, data allowances and other details of each of their currently available broadband offerings offered to mass market residential and small business customers. The required labels, which apply to both fixed and mobile broadband services, must be disclosed to customers at the point of sale.
The new standardized label is designed to resemble a food nutrition label.
The final design builds on a 2016 label approved by the agency following the adoption of the now-defunct 2015 Open Internet Order. The label at the time served as a safe harbor for ISPs seeking to comply with the disclosure requirements of the 2015 order. The new rule revives the label and expands on it, this time as part of a compulsory disclosure regime.
What are the new content requirements?
For each plan, ISPs now must provide consumers with information on monthly rates, fees, network performance, and data caps. The required label features a heading that reads “Broadband Facts” followed by several information blocks.
The new labels must be in the standard approved format and include:
- A unique identifier for each plan
- The monthly price and a list of each non-tax additional one-time or recurring fee, including any early termination fees and taxes
- Whether the offered price is a temporary promotional rate and, if so, the length or expiration date of the promotion and the price the consumer must pay at its end
- Whether the service requires a term commitment and, if so, a link to the terms of service
- Links to information about possible discounts when bundling the broadband service with other services
- The amount of data included in the plan and the charges for exceeding that allowance
- Typical download/upload speeds and latency figures for each plan
- Information about the FCC’s Affordable Connectivity Program (ACP) and an indication of whether the ISP participates
- Customer support contact information
- A link to the FCC Consumer Resource Center
Information on discounts, however, such as for automatic payments and bundled plans, may be disclosed through a link on the label and need not be included on its face.
- Are required to update labels each time an available plan is changed
- Must support machine-readability of its labels by providing the information separately in a spreadsheet file format that is available on its website via a dedicated URL linked to its network management disclosure
Labels must be accessible to people with disabilities and in compliance with the Americans with Disabilities Act. Also, ISPs must make labels available in any languages in which they market their services.
The label must be displayed “prominently” to consumers at the point of sale, both on the ISP’s website and in close proximity to an associated plan advertisement at every “point of sale” including retail stores and in telephone calls. When accepting telephone orders, ISPs should send the label to the caller by text or email in real time. ISPs that offer customers an online portal must make a standalone broadband customer’s label available on the portal.
It remains to be seen just how strictly the FCC will interpret the requirement that the label be “prominently displayed.” It’s possible that the agency will look to the FTC’s “clear and conspicuous” standard or similar state-based guidelines in enforcing the requirement.
The new requirements will become final upon publication in the Federal Register. Large ISPs will then need to comply within six months of that date, while smaller providers (100,000 or fewer subscribers) will have a full year after publication to reach compliance. The final rule can be viewed on the FCC’s website.
The FCC plans to continue to modify these requirements, beginning with seeking comments in a new rulemaking regarding additional labeling issues. These could include requiring the labeling to also be in other languages, providing for alternative means to measure and report speed and latency, and specific disclosures about network management practices (i.e., blocking, throttling, and paid prioritization).
The authors thank Andrew Eichen, a law clerk in Venable’s Washington, DC office, for his assistance in writing this article.
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