In guidance released this month, the Federal Communications Commission (“FCC”) provided new information on the level of detail and accuracy it expects in consumer transparency notices required of broadband Internet access service (“BIAS”) providers.
The notices, mandated by the FCC’s Transparency Rule, require broadband Internet providers to disclose accurate information regarding their network management practices, performance, and commercial terms in a way that can assist consumers shopping for the right provider or offering. The notices made headlines last month when the FCC unveiled a new design for the notices in the style of nutrition facts labels.
Providers seeking to comply with the Transparency Rule – and to avoid potential seven-figure penalties for non-compliance – should review their practices to ensure their consumer notices meet the requirements in the new guidelines, including guidance on disclosures and performance metrics.
Guidance on Disclosures
First, the FCC’s guidance clarifies the content and placement of the transparency disclosures.
The FCC made clear that it requires BIAS providers to disclose performance data for their offerings. The latest guidance confirms that companies should release a separate disclosure for each combination of technology (i.e. DSL, cable, fiber, satellite) and service tier (i.e. 50 Mbps download /10 Mbps upload).
The FCC also clarified its rules related to publicity of disclosures. Disclosures should be prominently displayed on a publicly available website for the BIAS provider, and the information should be available at the point of sale. Additionally, Providers must ensure consumers “actually receive the information” at the point of sale. A link to the information may be insufficient if the link is hidden or does not lead potential customers to the disclosure.
Guidance on Performance Metrics
Second, the FCC’s release provides guidance for measuring and reporting performance metrics.
- Measurement
The FCC clarified that providers may report data obtained through the Measuring Broadband America (MBA) program, but reliance on the program is not required. Providers not reporting MBA data can disclose network performance metrics calculated based on “internal testing, consumer speed test data, or other data regarding network performance, including reliable, relevant data from third party sources.” Metrics should be based on peak usage periods, and companies performing testing can use a representative sampling of routes between end users and points of interconnection to obtain statistics that are as accurate as possible.
- Reporting
When reporting actual performance metrics for both downloads and uploads and latency figures, the FCC clarified that providers can report median speeds or a range of speeds. When reporting ranges, a provider should disclose the percentile endpoints (i.e. the range is the 25th to 75th percentile). Packet loss statistics, in turn, should represent average packet loss.
The FCC also permits release of expected network performance measures, but emphasizes that expected performance should never exceed actual performance in any geographic area. To assist consumers with comparison of information, the FCC asks that actual and expected performance metrics be reported in the same format (either as a range or median).
- Reporting Performance Variations Based on Geographic Area
The FCC also clarified its rules on geographic granularity required when reporting service statistics. Fixed BIAS providers disclosing actual performance metrics should report information “for each broadband service in each geographic area in which the service has a distinctive set of network performance metrics (operational area).”
Questions?
If you have any questions regarding the latest Transparency Rule guidance, please do not hesitate to contact Linda McReynolds, lgm@commlawgroup.com – 703-714-1318.
