If you provide fixed or mobile broadband Internet access services, now is the time to review customer disclosures on your website and at the point of sale for compliance with the FCC’s enhanced Open Internet Transparency Rule. On the heels of the FCC’s notice of apparent liability imposing a $100 million fine against AT&T for subjecting customers who purchased “unlimited” data plans to speed reductions, broadband providers would be wise to make sure their marketing materials and disclosures could in no way be construed as surprising or misleading by customers.
The Open Internet Transparency Rule has been in full force and effect since 2011, one of the only survivors of the D.C. Circuit’s 2014 decision vacating the majority of the FCC’s original Open Internet regulations. Around this time last year, the Enforcement Bureau issued an Enforcement Advisory stating that accuracy is the “bedrock” of this consumer protection rule, designed to ensure that consumers know what they are buying.
In the recent Open Internet Order, the FCC maintained its existing transparency rules but added enhancements to further protect consumers in light of the number of consumer complaints it has received about the accuracy of broadband service providers’ advertisements and disclosures. Providers are already required to “publicly disclose accurate information regarding the network management practices, performance, and commercial terms” of their broadband Internet access services both at the point of sale and on their websites. Now, providers must provide greater detail about commercial terms, performance characteristics, and network practices that might impact a customer’s use of the service. To assist providers in complying with the new rules, the Commission plans to create a safe harbor for the format and nature of the required disclosures to consumers. Be aware that the safe harbor format will not protect the content of the mandated disclosures; disclosures must be accurate and not misleading.
In the meantime, the FCC has reminded broadband providers that if they fail to meet the 2010 requirements as enhanced by the recent Open Internet Order, they may be subject to investigation and forfeiture. And, as indicated in the Enforcement Bureau’s action against AT&T, the FCC will closely scrutinize broadband providers’ marketing materials and other disclosures.
For more specifics about the FCC’s new requirements or for a review of your existing policies, notices, marketing materials, and website disclosures, contact Linda McReynolds at firstname.lastname@example.org. For more information about our privacy, data security and consumer protection practice, please visit our website.