FCC Implementation of Rules Mandating Broadband “Nutrition Labels” Inches Forward; Agency and Industry Await OMB Approval

Back on November 17, 2022, the FCC released an Order and Further Rulemaking adopting rules requiring Internet service providers (“ISPs”) to display — at the point of sale — labels that disclose information about:

• Prices and fees (including introductory rates or discounts) applicable to the services being purchased,
• Data allowances and broadband speeds, and
• Information about network management practices, privacy policies and the FCC’s Affordable Connectivity Program.
• Taxes may not be bundled with the total price and must be identified separately.

The Order also adopted requirements for label formatting and how/where to display labels (which are sometimes referred to as a “Nutrition Labels”). This Order was published in the Federal Register on December 16, 2022. Unless the FCC narrows the scope of the requirements set forth in the Order will impact both large and small broadband carriers. The FCC is still accepting comments and reply comments on the Further Notice of Rulemaking regarding next steps for broadband labeling, and now is the time for providers to make their views known to the Commission.

The FCC established a six (6) month period for most providers to come into compliance before the new requirements take effect.  Smaller ISPs, those with 100,000 or fewer subscriber lines, will have one (1) year to implement the rules. The compliance period will begin running once the OMB completes its review of the new rules, which has not yet occurred.

In the Further Notice of Rulemaking, the FCC is also seeking comment on additional steps it can take to ensure that consumers have the information they need to make informed purchasing decisions, including issues related to more comprehensive pricing information, bundled plans, label accessibility, performance characteristics, service reliability, cybersecurity, network management and privacy issues, need for multi-lingual labels, and whether the labels should be interactive or otherwise formatted differently so the information contained in them is clearer and conveyed more effectively.

The FCC has emphasized that the “point of sale” disclosure requirement is in effect not only for online purchases, but also for in-person sales, such as at mall kiosks, and for sales made over the phone. Companies will need to have measures arranged ahead of time, for example: (1) by emailing labels to customers who contact them by phone, and (2) having some method to display the labels for in-person sales. There is as yet no requirement for label languages besides English, but the FCC is considering making it a requirement.

The FCC originally set the date for filing comments and reply comments on this Notice at thirty and sixty days after its publication in the Federal Register. On January 6, however, the FCC responded to requests for an extension by various industry and customer groups and extended the period for comments and reply comments by an additional thirty days, to February 16 and March 16, respectively.

Failure to comply with the rules by the applicable deadlines may expose ISPs to enforcement and forfeiture liability.

Our firm is standing by to assist clients with their efforts to comprehend the new rules, determine how they apply to their business, and implement measures to ensure compliance in a timely manner.  Businesses still have until February 16 to submit your concerns directly to the FCC in the form of a Comment, which we can help prepare.

For more information, please contact Jonathan S. Marashlian at jsm@commlawgroup.com for assistance.