At the Congressional deadline imposed by the Infrastructure Investment and Jobs Act (IIJA), the Federal Communications Commission (FCC) has required fixed and mobile internet service providers (ISPs) to publish broadband service "nutrition labels" in a standardized format to inform customers of the pricing, performance, and other details of each of their currently available standalone broadband offerings sold to mass market residential and small business customers. These new obligations significantly overlap (and will apply in addition to) the FCC’s existing network transparency rules.
Once these new labeling rules are approved by the Office of Management and Budget (likely to occur in early 2023), providers with fewer than 100,000 broadband subscribers (aggregated over all the provider’s affiliates) will have one year to comply, and larger providers will have to comply within six months. ISPs should collect the necessary information well in advance of these deadlines because additional time will be needed to prepare to comply with the FCC’s rules to make the labels machine readable and accessible for people with disabilities.
The new broadband label is designed similarly to nutrition information labels required to be printed on food products, and ISPs cannot deviate from the prescribed format. The labels must include:
A copy of the FCC’s prescribed format is at the bottom of this advisory. ISPs are required to update labels each time an available plan is changed, but the FCC did not require ISPs to undertake the burden of notifying existing customers of such changes because "the labels are primarily intended to educate consumers at the time of purchase." ISPs must archive all labels and retain evidence sufficient to support the accuracy of the labels’ content (such as speed test data) for two years beyond the retirement of an available offering.
The labels must be prominently displayed in close proximity to an associated plan advertisement at every "point of sale," including websites, retail stores, and in phone calls. Online, the labels do not need to be displayed prior to a visitor specifying their service location so that only plans available to them would be made visible. When accepting telephone orders, ISPs can send the label to the caller by text or email in real time; other options include the agent reading the entire label or pointing the caller to a direct link, but companies electing the latter option must retain documentation for two years of every instance in which they refer a consumer to an alternate sales channel to access the label.
One year after OMB approval, ISPs that offer customers an online portal must make a standalone broadband customer’s label available on the portal. That said, the FCC did not require ISPs to create labels for bundled plans or plans that were no longer offered as of the effective date of these new rules, so it appears that a label need not be available on the portal to those customers.
ISPs must support machine-readability of all English versions of its labels by providing the information separately in a spreadsheet file format (such as .csv) that is available on its website via a dedicated URL that is linked in its network management disclosure.
The FCC required that labels be accessible to people with disabilities and ordered ISPs to follow the Americans with Disabilities Act and associated Department of Justice guidance, including giving primary consideration to the individual’s choice of alternate format, including "qualified readers, taped texts, audio recordings, braille materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments." The FCC also strongly encouraged ISPs to comply with the Web Content Accessibility Guidelines (WCAG).
The rules also require ISPs to make labels available in any other languages in which it markets its services in the United States. The FCC encouraged ISPs to use native speakers to review translations for context and vernacular language to ensure the language is easily accessible and understandable to target audiences.
Regulated companies know that a new regulation is often only the beginning. While other FCC regulation of broadband remains subject to legal challenge, the core tenets of these new labeling rules are less vulnerable because they were authorized and directed by Congress in the IIJA. The initial labeling rules were adopted unanimously by an evenly divided bipartisan FCC, but there is an increased chance next year of a Democratic majority at the FCC as a result of the Democrats’ retention of Senate control, and those odds will increase if the Democratic candidate wins the Georgia runoff to secure a Senate majority. The FCC has already issued a request for comment on proposed additional rules related to more comprehensive pricing information, bundled plans, label accessibility (including mandatory compliance with certain WCAG 2.1 standards), performance characteristics, service reliability, cybersecurity, network management and privacy issues, the availability of labels in multiple languages, and whether the labels should be interactive or otherwise formatted differently so the information contained in them is clearer and conveyed more effectively. Comments will be due 30 days after publication of the FCC’s order in the Federal Register, which is expected soon.
Companies should promptly begin to plan their compliance strategy, given the substantial effort that may be needed to implement the new rules. ISPs should also make sure that their network management transparency disclosures are up-to-date given the increased scrutiny that is likely in the coming months as the labeling rules become effective. DWT will be assisting many clients and would be happy to discuss.
The new FCC format for standalone mass market broadband labels is as follows:
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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