On August 25, 2023, the Federal Communications Commission (“FCC”) adopted an Order on Reconsideration (“Reconsideration Order”) that addressed three petitions requesting that the agency reconsider its broadband label requirements. Among other things, the FCC affirmed its requirement that broadband Internet service providers (“ISPs”) display on the label all monthly fees with respect to the service.
As background, the FCC released a Notice of Proposed Rulemaking (“NPRM”) on January 27, 2022, which aimed to implement section 60504 of the Infrastructure Investment and Jobs Act. More information about the NPRM is available here. On November 14, 2022, the FCC adopted new broadband label rules that required ISPs to, among other things, display “at the point of sale” a label containing “critical information” about the ISP’s offerings, including information about pricing, data allowances, and performance metrics. Following the adoption of these requirements, three petitioners asked the FCC to clarify and/or reconsider certain label requirements, such as those that obligate ISPs to document consumer interactions regarding labels that occur via alternative sales channels (e.g., retail stores, kiosks, and over the phone) and those that require the labels to accommodate service options that wireless providers make available to consumers, even if they do not fit into the format of the label template.
In the Reconsideration Order, the FCC affirmed and clarified the following:
- ISPs must itemize fees they add to base monthly prices, including fees related to government programs that they “pass through” to consumers.
- ISPs should keep descriptions of any data allowances simple on the label and only include details about them in the complete service descriptions in advertising materials and on their websites.
- Enterprise service offerings, or special access services, are not “mass-market retail services” and thus are not subject to the label requirement. However, the label requirements continue to apply to mass-market broadband services offered in the E-Rate and RHC programs.
- The requirement that a provider must document each instance in which it directs a consumer to a label at an alternative sales channel (e.g., retail stores, kiosks, and over the phone) will be deemed satisfied if the ISP: (1) 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 FCC within 30 days upon request.
- Wireless providers have flexibility to add language such as “taxes included” to the label template when the provider has chosen to include taxes as part of its base price.
The effective date of the revisions to the broadband label rules, which will be codified at 47 C.F.R. §§ 8.1(a)(1) and 8.1(a)(2), will become effective upon publication in the Federal Register. As of the date of this blog post, they have not been published. The compliance dates for the amendments made by the rules will be one year following completion of the Office of Management and Budget (“OMB”) review and modification of section 8.1(a)(7) for providers with 100,000 or fewer subscribers and six months following completion of OMB review and modification of section 8.1(a)(7) for all other providers.