AGENCY:
Federal Communications Commission.
ACTION:
Final rule.
SUMMARY:
In this document, the Federal Communications Commission (Commission or FCC) adopts rules as required by the Infrastructure Investment and Jobs Act (Infrastructure Act) to help consumers comparison shop among broadband services. Specifically, the rules require broadband internet service providers (ISPs) to display, at the point of sale, a broadband consumer label containing critical information about the provider's service offerings, including information about pricing, introductory rates, data allowances, performance metrics, and whether the provider participates in the Affordable Connectivity Program (ACP).
DATES:
Effective date: This final rule is effective January 17, 2023.
Compliance date: Compliance with the amendments to 47 CFR 8.1(a)(1) through (6) of the Commission's rules are delayed indefinitely. The Commission will publish a document in the Federal Register announcing the compliance dates.
FOR FURTHER INFORMATION CONTACT:
For additional information on this proceeding, contact Erica H. McMahon, Erica.McMahon@fcc.gov or (202) 418-0346, of the Consumer and Governmental Affairs Bureau, Consumer Policy Division. For information regarding the Paperwork Reduction Act (PRA) information collection requirements, contact Cathy Williams, Office of Managing Director, at (202) 418-2918, or Cathy.Williams@fcc.gov.
SUPPLEMENTARY INFORMATION:
This is a summary of the Commission's Report and Order, FCC 22-86, CG Docket No. 22-2, adopted on November 14, 2022, and released on November 17, 2022. The full text of this document is available online at https://www.fcc.gov/document/fcc-requires-broadband-providers-display-labels-help-consumers . To request this document in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice).
Final Paperwork Reduction Act of 1995 Analysis
This document contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new information collection requirements contained in this proceeding. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees, and the Commission received no comment.
Congressional Review Act
The Commission sent a copy of document FCC 22-86 to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
Synopsis
1. In this final rule, the Commission adopts a new broadband label to help consumers comparison shop among broadband services, thereby implementing section 60504 of the Infrastructure Act. See Infrastructure Investment and Jobs Act, Public Law 117-58, 135 Stat. 429, section 60504(a) (2021). Specifically, the Commission requires ISPs to display, at the point of sale, a broadband consumer label containing critical information about the provider's service offerings, including information about pricing, introductory rates, data allowances, performance metrics, and whether the provider participates in the ACP. The Commission requires that ISPs display the label for each stand-alone broadband internet access service they currently offer for purchase, and that the label link to other important information such as network management practices, privacy policies, and other educational materials.
2. Consistent with the Infrastructure Act, the label the Commission adopts for fixed and mobile broadband internet access service is similar to the two labels the Commission approved in 2016, with certain modifications. As discussed in the Empowering Broadband Consumers Through Transparency Notice of Proposed Rulemaking (NPRM),87 FR 6827 (Feb. 7, 2022) ( NPRM), access to clear, easy-to-understand, and accurate information about broadband internet access services helps consumers make informed choices and is central to a well-functioning marketplace that encourages competition, innovation, low prices, and high-quality service. Commenters agree that a label associated with stand-alone broadband service will provide important information to consumers when selecting a provider and plan.
3. In addition to label content, the Commission adopts requirements for the label's format and display location to ensure consumers can make side-by-side comparisons of various service offerings from an individual provider or from alternative providers—something essential for making informed decisions. In this way, the label resembles the well-known nutrition labels that consumers have come to rely on when shopping for food products. The Commission also requires that the label be accessible for people with disabilities and for non-English speakers. Finally, the Commission enables third parties to easily analyze information and help consumers with their purchase decisions by requiring providers to make the label content available in a machine-readable format.
4. Below is the label template the Commission requires ISPs to display at the point of sale. This label establishes the formatting and content of all requirements adopted in this final rule. The red text in the label template is explanatory and simply instructs providers as to the content they must provide in the label. The Commission expects that, once the provider completes the required fields, it will post, or otherwise provide, the entire label in black text. Accessible materials, including the label template contained in this final rule, will be available on the Commission's website.
A. Broadband Service Subject to the Label Requirement
5. At the outset, the Commission makes clear that the label requirement applies to “broadband internet access service plans” because the Infrastructure Act directs the Commission to require the display of labels that disclose information regarding “broadband internet access service plans.” For purposes of section 60504 of the Infrastructure Act, “broadband internet access service” is defined as having the meaning specified in § 8.1(b) of the Commission's rules, “or any successor regulation.” Broadband internet access service is currently defined in § 8.1(b) of the Commission's rules as “a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service.” See47 CFR 8.1(b). The definition also “encompasses any service that the Commission finds to be providing a functional equivalent of the service” defined in the rules or that is used to evade the protections set forth in the rules. No commenter proposed modifying that definition for purposes of these broadband label rules.
6. The Commission agrees with INCOMPAS that enterprise service offerings or special access services are not “mass-market retail services,” and therefore, not covered by the label requirement. INCOMPAS asks the Commission to clarify that “providers or resellers whose customers are larger businesses or governments—entities that typically negotiate the terms of their service contracts”—should not be required to display the labels. INCOMPAS argues that “it would be extremely difficult, confusing, and unnecessary for the wholesaler or the reseller to create a label for hundreds of different plans if they are not providing a standardized, mass-market service to residential and business customers.” INCOMPAS, however, does not point to any specific evidence that it would be difficult for wholesalers and resellers to create labels for their larger customers or that the labels would be confusing for the customers themselves. Nevertheless, in both the 2015 Open Internet Order,80 FR 19737 (Apr. 13, 2015) and the 2017 Restoring Internet Freedom Order,83 FR 7852 (Feb. 22, 2018), the Commission determined that “mass-market retail services” do not include enterprise service offerings or special access services, which are typically offered to larger organizations through customized or individually negotiated arrangements. Nothing has changed to alter the Commission's view regarding service offerings to large customers (or other entities) that are not mass-market retail services; these services are not covered by the disclosure requirements here.
7. The Commission disagrees with INCOMPAS that the Commission should interpret the definition in § 8.1(b) of the Commission's rules to exclude ISPs participating in the E-Rate and Rural Health Care (RHC) programs from the label requirements simply because the labels might be viewed as “redundant” to the competitive bidding process, during which time customers define the services that they need and providers put forward bids. Thus, the Commission requires E-Rate and RHC providers to provide a label along with any competitive bids submitted pursuant to the E-Rate or RHC competitive bidding processes, whether or not such provider defines their offered service as an “enterprise” service.
8. First, the Commission sees nothing in the text of the Infrastructure Act to suggest Congress intended that the Commission exclude services subject to the E-Rate and RHC bidding processes (or the providers of those services), and the regulatory history suggests the contrary. The Infrastructure Act expressly defines “broadband internet access service” by reference to the definition in § 8.1(b) of the Commission's rules, and the Commission previously has interpreted that rule to include E-Rate and RHC services. Indeed, the Infrastructure Act's label requirement drew upon the Commission's broadband label efforts associated with the 2015 Open internet Order, and that prior broadband label effort relied on a definition of broadband internet access service from the 2015 Open internet Order, that included E-Rate and RHC services within the universe of mass-market retail services encompassed by that definition. The Commission finds it reasonable to interpret “broadband internet access service” as currently defined in § 8.1(b) of the Commission's rules in light of that historical understanding that formed the regulatory backdrop for Congress' action here.
9. Second, as a policy matter, the Commission sees no reason why the bidding process means that the E-Rate and RHC consumers would not benefit from the label. Most relevant to the purposes of the Infrastructure Act, the label might help schools, libraries, and health care providers to compare the offers being made in the competitive bidding process with other alternatives in the marketplace. Further, the labels could provide benefits in terms of enforcing E-Rate or RHC rules, such as requirements to offer rates and terms that are comparable to the best available offer to non-Universal Service Fund (USF) recipients ( See47 U.S.C. 254(h)(1)(B)), or for purposes of making comparisons between rural and urban rates, or the like.
10. Finally, the Commission clarifies (as it did in 2017) that, to the extent that coffee shops, bookstores, airlines, private end-user networks such as libraries and universities, and other businesses acquire broadband internet access service from an ISP to enable patrons to access the internet from their establishments, provision of such service by the premises operator is not itself broadband internet access service unless offered to patrons as a mass-market retail service, as the Commission defines it here. The Commission nevertheless has encouraged premises operators to disclose relevant restrictions on broadband service they make available to their patrons. Thus, these businesses need not create and display labels associated with those services.
B. Broadband Consumer Label (Fixed and Mobile)
11. The Commission adopts one label requiring the same information and in the same format for both fixed and mobile broadband service offerings. The content that commenters identify as most important to assist consumers in making informed decisions at the point of sale is the same whether consumers are shopping for fixed or mobile broadband service. Based on the record, the Commission concludes that two distinct labels are unnecessary and may confuse consumers and be more burdensome for providers to implement. Thus, all broadband internet access service providers are required to display the same label format as described below.
1. Content
a. Pricing
12. Service Plan Name. As with the 2016 labels ( See NPRM, Fixed Broadband Consumer Disclosure Label From the 2016 Public Notice and Mobile Broadband Consumer Disclosure Label From the 2016 Public Notice), the Commission requires providers to identify the name of the service plan at the top of the label. Broadband service providers generally offer many different plans with different rates, contract terms, speeds, and data allowances to meet customers' needs. For labels to be effective, consumers must be able to differentiate each plan a provider offers; only then can a consumer compare plans for that provider and across competing providers. The instruction in the 2016 fixed broadband label directed a provider to identify its plan by speed tier. While providers may continue to identify their plans by speed ( e.g., “300 Mbps,” “500 Mbps”), they may also differentiate their plans using terminology of their choice ( e.g., “Gigabit Connection,” “Performance Pro,” or “Blast internet”). Or, in the case of mobile broadband providers, “4G” or “5G.” Because the Commission requires providers to display critical information about each plan elsewhere on the label, including speed metrics, the plan itself need not be identified by speed tier. However, if a provider identifies the plan name by speed tier, the speed tier must be accurate and consistent with the speed metrics identified elsewhere in the label. The Commission believes this will minimize confusion by allowing consumers to more easily match the label to the associated advertised plan.
13. Monthly Price. Consistent with the 2016 labels, a provider must display on the label, at a minimum, the base monthly price for the stand-alone broadband service offering ( i.e., an offering that is not bundled with other services such as multichannel video or voice). We believe consumers are accustomed to seeing base monthly prices, without additional taxes and fees, when shopping for goods and services and thus, the presentation of the base price should enable easy comparison shopping.
14. The Commission disagrees with commenters that recommend ISPs aggregate the monthly price identified on the label with any other discretionary fees and government taxes—creating an “all-in” price. Although this approach may have some benefit, the Commission agrees with providers that it may be difficult to implement. For example, government taxes vary according to the consumer's geographic location. And a consumer's election to rent or purchase equipment may increase their upfront or monthly charges. Installation fees may vary according to the consumer's location and dwelling ( e.g., apartment, single-family home) as well. Thus, requiring display of a single, “all-in” price on a label may be difficult for ISPs and potentially misleading for consumers. Further, the Commission believes requiring that the labels clearly itemize any additional discretionary fees and state that additional government taxes will apply to each plan will better provide consumers with a complete understanding of their bill. A provider that opts to combine all of its monthly discretionary fees with its base monthly price may do so and list that total price. In that case, the provider need not separately itemize those fees in the label.
15. Introductory Rates. Based on the record, the Commission concludes that if a provider displays an introductory rate in the label, it must also display the rate that applies following the introductory period. This approach implements the Infrastructure Act's requirement that the label “include information regarding whether the offered price is an introductory rate and, if so, the price the consumer will be required to pay following the introductory period.” See Infrastructure Act, section 60504(b)(1). As the label template shows, ISPs must prominently indicate whether the monthly price is an introductory offer along with the post-introductory period rate so that consumers can compare both. If the listed monthly price is non-promotional, the provider must simply state that it is a non-introductory rate, and no further disclosures are required on the label. The provider may still include a link to promotional pricing options elsewhere on its website. We agree with those commenters that argue that the label should also clearly disclose either the length of the introductory period or the date on which the introductory period will end.
16. The Commission rejects the assertion that providers should merely link to introductory rates. Relegating the introductory rate or post-introductory rate to a location elsewhere on the provider's website deprives the consumer of immediate access to information critical to the consumer's purchase decision. Providers may give more details about their non-introductory pricing through a link on the label, but the text of the statute indicates that Congress viewed introductory and post-introductory rates to be significant enough to disclose them on the label itself. Further, even if Congress had not provided that the label specify whether the offered price is an introductory rate, the Commission finds that, based on the record, this approach strikes the appropriate balance between ensuring that consumers have the information necessary to select the broadband services that meet their needs and avoiding a label that is unnecessarily complex and unclear for them.
17. Billing and Other Discounts. In the interest of simplicity and based on the record, at this time the Commission requires providers to display only the “retail” monthly broadband price, by which the Commission means the price a provider offers broadband to consumers before applying any discounts such as those for paperless billing, automatic payment (autopay), or any other discounts. The provider may instead link from the label to a web page explaining such discounts. Providers may also separately inform consumers about discounts as part of their marketing materials. The Commission's conclusion is consistent with most commenters' views that providers must be clear about the conditions for discounts. The Commission believes this approach will make the label a quick reference tool for consumers as they begin their broadband shopping experience.
18. Nevertheless, the Commission recognizes that the price that any one consumer will pay for broadband service is the product of many variables, including bundling, discounts, and location-specific taxes and that a principal goal of the label is to give consumers a reliable idea of what they will pay each month that incorporates these pricing variables, and does so in a way that is uniform among providers thus enabling easy comparison shopping. While the Commission lacks the record at this time on the best way to balance informing consumers about the potentially large number of pricing options available for any one service against overwhelming them with so many labels and pricing information to effectively render comparison shopping impossible, with the accompanying burden on providers of producing those labels, the Commission asks questions in the accompanying Further Notice of Proposed Rulemaking ( FNPRM), published elsewhere in this issue of the Federal Register , on how the Commission can address that balance in the future.
19. Contract Plans. Similar to the Commission's approach to introductory rates, the Commission concludes that ISPs that offer a discount for consumers who commit to a contract term must display the length of that term on the label. The Commission's determination is consistent with the 2016 fixed broadband label that required providers to “identify [the] length of available long-term contracts” and to “provide . . . [the] price of stand-alone broadband service available under each long-term contract option.”
20. The Commission believes it is critical that consumers know whether the price identified on the label requires the consumer to commit to service for a specified period of time and that if the consumer decides to switch to another provider or terminate service altogether, they may be subject to an early termination fee. No commenter disputes that information about contract terms is important to consumers making decisions about broadband service. As discussed below, the provider must also disclose any applicable early termination fees if the consumer cancels the service before the end of the contract.
21. Bundled Plans. In this final rule, the Commission requires providers to display a label for their standalone broadband services. In the E-Rate and RHC context, the label will be for the broadband internet access service submitted pursuant to the bidding process, regardless of whether such service is combined with other services. Consistent with the conclusion above, providers offering broadband internet access service bundled with other services may note that via a link in the “click here” section of the label where they describe other discounts. This approach is supported by commenters and will enable apples-to-apples comparisons of broadband internet access services. And providers are free to describe in their marketing materials the value of bundling, including the discounts associated with bundling various services. The Commission seeks comment in the accompanying FNPRM whether the Commission should, in the future, require labels for bundles that include broadband service.
22. Additional Monthly Charges and One-Time Fees. The label must display recurring monthly charges the provider imposes on top of the base price described above, along with any one-time fees the consumer must pay at the time of purchase.
23. First, under “Additional Charges & Terms,” providers must list all recurring monthly fees. These fees include all charges that providers impose at their discretion, i.e., charges not mandated by a government. These discretionary charges include those the provider collects to recoup from consumers its costs associated with government programs but where the government has not mandated such collection, e.g., USF contributions. Providers must give each fee a simple, accurate, easy-to-understand name, thus enabling consumers to understand which charges are part of the provider's rate structure, and which derive from government assessments or programs. Further, the requirement will allow consumers to more meaningfully compare providers' rates and service packages, and to make more informed decisions when purchasing broadband services. Providers must list fees such as monthly charges associated with regulatory programs and fees for the rental or leasing of modem and other network connection equipment. Other monthly charges that must be listed might include network access charges and USF charges. This list is not exhaustive.
24. Next, the “Additional Charges & Terms” section of the label must include the name and cost of each one-time fee assessed by the provider when the consumer signs up for service. This section will identify one-time fees such as a charge for purchasing a modem, gateway, or router; an activation fee; a deposit; an installation fee; or a charge for late payment. The provider must also identify any one-time fees the provider will impose if the customer cancels their broadband service before the end of a contract term ( e.g., an early termination fee) and provide a link to a full explanation of when such fee is triggered. If the provider's early termination fee is prorated based on the time the consumer cancels service, the provider may note that in the label, along with the maximum early termination fee, and include a link to more details about its early termination policies.
25. Finally, providers must disclose any charges or reductions in service for any data used in excess of the amount included in the plan. They must also identify the increment of additional data, e.g., “each additional 50GB,” if applicable, and disclose any additional charges once the consumer exceeds the monthly data allowance. The Commission agrees with commenters that limits on data usage is critical information for consumers, along with any additional charges the provider may assess once a consumer exceeds such a cap. And the Commission has required disclosure of “any data caps or allowances that are a part of the plan the consumer is purchasing, as well as the consequences of exceeding the cap or allowance ( e.g., additional charges, loss of service for the remainder of the billing cycle).” However, as several commenters note, it is important to keep the label information as simple as possible for consumers and to require providers to comply by including links to their websites for more detailed information about data allowances. This would include providing information about any reductions in service or speeds once the consumer exceeds his data allowance.
26. Taxes. Consistent with the 2016 labels, the Commission requires ISPs to state under “Additional Charges & Terms” that taxes will apply and that they may vary depending on location. The 2016 labels included information about government taxes and fees. As discussed above, the Commission agrees with those commenters that argue that applicable taxes often vary according to the consumer's geographic location, so either including them in the total monthly price or itemizing them on the label may be difficult and potentially confusing for consumers. As consumers are accustomed to seeing prices without additional tax when shopping, the Commission believes this simple disclosure should be sufficient for consumers to comparison shop among providers and plans.
b. Performance Information
27. Speed and Latency. The Commission requires providers to disclose in the labels speed and latency metrics associated with their broadband services. Specifically, the Commission requires providers to display their typical upload and download speeds and typical latency, consistent with their current obligations under the existing transparency rule and the 2011 Advisory Guidance. See FCC Enforcement Bureau and Office of General Counsel Issue Advisory Guidance for Compliance with Open internet Transparency Rule, DA 11-1148, released on June 30, 2011 ( 2011 Advisory Guidance).
28. The Commission agrees with many commenters that urge the Commission to include the same information in the label about speed and latency as appeared in the 2016 labels. USTelecom, for example, argues that the Commission “should maintain its existing requirements for disclosing speed and latency” and “continue to permit fixed ISPs that participate in the Measuring Broadband America (MBA) program to disclose their speed and latency results as a sufficient barometer for performance customers can expect to experience.” ACA Connects similarly states that there is no need for the Commission to revisit “its well-established guidelines” for reporting speeds and latency by fixed broadband providers. Commenters generally are not opposed to disclosing speed and latency metrics in the label; they do, however, offer a number of alternative ways to measure and display speed and latency information.
29. Download and upload speeds were included in the 2016 labels, and no commenter argues for eliminating speed metrics from the label entirely. Further, speed has historically been one of the most important agreed-upon metrics for internet performance. As the Commission stated in its Eleventh MBA Report, “[s]peed (both download and upload) performance continues to be one of the key metrics reported by the MBA,” and “remains the network performance metric of greatest interest to the consumer.” See Eleventh Measuring Broadband America, Fixed Broadband Report, Federal Communications Commission, Office of Engineering and Technology, released on December 31, 2021 (Eleventh MBA Report), at https://data.fcc.gov/download/measuring-broadband-america/2021/2021-Fixed-Measuring-Broadband-America-Report.pdf.
30. Thus, for purposes of satisfying this requirement, fixed broadband service providers that choose to participate in the MBA program may disclose their results as a sufficient representation of the actual performance their customers can expect to experience for the relevant speed tier. Nothing in this final rule supplants any providers' existing obligations to provide data consistent with prior Commission guidance in complying with the current transparency rule. See47 CFR 8.1 of the Commission's rules.
31. Fixed broadband service providers that do not participate may use the methodology from the MBA program to measure actual performance, or may disclose actual performance based on internal testing, consumer speed test data, or other data regarding network performance, including reliable, relevant data from third-party sources.
32. Mobile broadband service providers that have access to reliable information on network performance may disclose the results of their own or third-party testing. Those mobile broadband service providers that do not have reasonable access to such network performance data may disclose a Typical Speed Range (TSR) representing the range of speeds and latency that most of their consumers can expect, for each technology and service tier offered.
33. The Commission also agrees with those commenters that believe that low delay or latency is important to any application involving users interacting with each other, a device, or an application. Persons who utilize video conferencing—including persons with disabilities—may find latency metric information to be especially useful when selecting a broadband provider and plan. The Commission therefore requires providers to display their typical latency for that particular speed tier, either based on MBA methodology or other relevant testing data.
34. The Commission does not believe the current record supports commenters' proposed deviations from this approach, especially where such changes could mean potentially material changes to how providers track and collect speed and latency data. The Commission does, however, seek additional comment in the FNPRM, published elsewhere in this issue of the Federal Register , on alternative speed and latency measurements for the label going forward. And providers may give prospective customers more information about their broadband speeds and latency in their advertising materials or elsewhere on their websites.
35. Peak Usage Data. The Commission declines to adopt a requirement that providers tie their actual speed reporting to “peak usage periods,” as we proposed in the NPRM and as the Commission's Consumer Advisory Committee (CAC) recommended for the 2016 labels. First, the Commission agrees with AT&T that “peak usage” periods in mobile networks vary substantially from location to location, e.g., downtown areas may have one peak usage time and residential areas another, and all of this may have changed during the COVID-19 pandemic. And, as AT&T has explained, it might be burdensome for mobile providers to determine what the peak usage times are for any given area because providers would have to undertake studies of every geographic area to determine peak usage times for each area, and then perform drive testing to collect sufficient information to develop average speed and latency during those times.
36. Nor does the record reflect that deviating from the current transparency rule requirements to require peak period disclosures for fixed providers outweigh the potential costs of gathering and reporting that data. The Commission nevertheless notes that fixed broadband participants in the MBA program who choose to use MBA results and providers who choose to use the MBA methodology are required to disclose data by speed tier showing mean upload and download speeds in megabits per second during the “busy hour.” Nothing here should be construed to alter MBA requirements. Some commenters offer various definitions of peak usage, and others recommend against using peak usage as a metric on the label. The Commission finds there is no consensus on how to define peak at this point and the Commission recognizes that today, with many working from home, peak usage hours may vary for fixed and mobile broadband. The Commission also finds that the use of a single label for both fixed and broadband, without the nuance of peak usage for one and not the other, promotes ease of understanding for consumers.
37. Packet Loss. The Commission declines, at this time, to require providers to include information on packet loss in the label. Packet loss is generally defined to mean occurrences when packets of data traveling over the internet fail to reach their intended destination. The 2016 labels instructed ISPs to provide the typical packet loss associated with the offered broadband service. In the NPRM, the Commission proposed to include packet loss information as part of the performance disclosures in the new broadband labels, although we also asked whether any information on the proposed label was no longer necessary to serve the goals of the Infrastructure Act. The NPRM noted that in 2016, OMB concluded that packet loss would not be a required performance metric for the mobile broadband label.
38. The vast majority of commenters observe that, today, consumers have little understanding of what packet loss involves and argue that such information should not be included in the label as it provides little benefit to the average consumer shopping for broadband service. The Commission agrees that, although this metric may provide useful information to certain consumers, packet loss is less important than upload and download speeds and latency, and may actually lead to more confusion for most consumers. The Commission therefore does not require packet loss measurements in the new label at this time. The Commission does, however, seek additional comment in the FNPRM about whether there are other service characteristics, beyond speed and latency, that ISPs should display on the label.
c. Network Management Practices
39. The Commission requires that ISPs include in the label a link to their network management practices. The 2016 labels required providers to disclose their “application-specific network management practices” and their “subscriber-triggered network management practices” with “yes” or “no” answers on the label, and to provide links to more details about such practices.
40. The Commission is not persuaded that the label should include detailed information about network management practices, specifically those related to blocking, throttling, and paid prioritization. The Commission agrees with those commenters that contend such information may be confusing for the average consumer when shopping for broadband service while using a tool like a label, which is designed to enable simple comparisons of key information. The Commission disagrees with those commenters that maintain that the Commission should require more detailed network management disclosures on the label, and therefore declines at this time to add content to the label about network management practices such as tables that identify when a particular practice is triggered and the likely effect of the practice on network performance.
41. After reviewing the record, the Commission concludes that a link to an ISP's network management practices is sufficient and that any more detailed information in the label is unlikely to benefit consumers comparison shopping for broadband internet access service offerings. Including such information on the face of the label may overwhelm consumers during the purchasing process and might impose additional costs on providers. The Commission agrees that, at this time, requiring a link to the broadband service provider's website as a source for more information on its network management practices, rather than expanding the label to address network management practices in detail, best meets the needs of consumers and fulfills Congress' directive in requiring the Commission to mandate display of a label. Providers must, however, either include necessary information on their websites about blocking, throttling, and paid prioritization or transmit such information to the Commission to comply with the current transparency rule requirements. See 2017 Restoring internet Freedom Order,83 FR 7852 (Feb. 22, 2018).
42. The Commission also seeks comment in the FNPRM on whether, in the future, the label should include more granular data about a provider's network management practices and additional specifics about how such information should be conveyed to the public in the label or the provider's website.
d. Affordable Connectivity Program
43. The Infrastructure Act recognizes that the Commission and participating providers, among other stakeholders, have an important role in promoting the ACP. For example, the Infrastructure Act requires providers to notify consumers about the existence of the ACP and how to enroll in the program “when a customer subscribes to, or renews a subscription to, an internet service offering of a participating provider.” See47 U.S.C. 1752(b)(10)(A). To ensure that the Commission is using every tool available to promote the availability of the ACP, the Commission requires all providers to include a link in their labels to information about the ACP and to indicate whether the provider is participating in the ACP.
44. Many commenters believe the broadband label is an appropriate vehicle for educating potential broadband customers about the existence of, and eligibility for participation in, the ACP. The Commission agrees that including information about the ACP in the label will help increase awareness of the program's existence, further expanding the reach of information about the program to eligible consumers. This expanded outreach about the ACP to eligible consumers, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality can promote advances in diversity, equity, and inclusion. The Commission therefore concludes that, throughout the duration of the ACP, at a minimum, the label should highlight the ACP and provide a link to additional qualification requirements.
45. The Commission is cognizant of concerns raised by some commenters that including too much detail about the ACP in the label could overshadow the key information consumers need to make broadband service purchasing decisions. Yet the Commission also believes strongly that the ACP is a valuable program to help consumers afford the broadband they need for work, school, and healthcare, and that information about the ACP may be a relevant factor in a consumer's decision to purchase a particular broadband service. The Infrastructure Act does not require this information to be included on the label, but the Commission agrees with CTIA-The Wireless Association (CTIA) and other commenters that including a link in the broadband label to more detailed information about the ACP and how to qualify for the program is appropriate and sufficient.
46. Thus, each provider must disclose in its labels whether it participates in the ACP and include the following statement: “The Affordable Connectivity Program (ACP) is a government program to help lower the monthly cost of internet service. To learn more about the ACP, including to find out whether you qualify, visit www.affordableconnectivity.gov. ” The text of the web address www.affordableconnectivity.gov must be an active link to the ACP web page, www.affordableconnectivity.gov. The Commission emphasizes that the requirements we establish in this final rule do not impact an ACP provider's obligation to comply with the Commission's ACP rules, including any requirements related to advertisement, promotion, and notification to subscribers of the ACP. See47 CFR 54.1804 of the Commission's rules.
47. The Commission also recognizes that because the ACP has not been made permanent by Congress, the ACP may end when the appropriated funding is exhausted. Including language on the labels directing consumers to learn about the ACP in the event that the ACP has ended or is no longer accepting new enrollments could cause customer confusion and frustration. The Commission therefore directs the Wireline Competition Bureau and the Consumer and Governmental Affairs Bureau to ensure that any wind-down procedures for the ACP developed as directed by the ACP Order, FCC 22-87, adopted on November 15, 2022 and released on November 23, 2022, address the need for providers to remove or modify the ACP-specific language on the broadband label.
e. Privacy Policy
48. Consistent with the 2016 labels, the Commission requires providers to include a link in the label to the service provider's privacy policy on its website. The Commission concludes that a link to such a policy is appropriate and that more detailed information in the label would likely overwhelm consumers and not benefit them at the point of sale. The Commission agrees with those commenters opposed to including expansive privacy disclosures in the label and point to the limitations of a label to adequately disclose privacy information to consumers in a meaningful way. The Commission is persuaded that privacy policies are often complicated and that requiring providers to disclose granular, detailed information on privacy practices on the face of the label would likely make the label unwieldy.
49. The Commission nevertheless recognizes that privacy policies and practices, such as whether a provider discloses data to third parties, whether providers collect and retain data about consumers that may not be essential to providing the consumer with broadband service ( e.g., the websites the consumer visits), and whether customers can opt out of each data practice, are important. The Commission therefore requires providers to include a link in the label to their privacy policies, but determine that such information is more accurately and completely explained elsewhere on the provider's website rather than in the limited space on the label. The Commission also believes that, without going beyond the scope of the charge given to us by Congress in section 60504 of the Infrastructure Act and considering in depth the type of privacy information that is most valuable to consumers at the point of sale for stand-alone broadband service and other services, it is premature to revise the 2016 labels' privacy disclosure.
50. The Commission does, however, seek additional comment on issues related to privacy disclosures in the FNPRM, published elsewhere in this issue of the Federal Register . A more informed record is essential to determining what, if any, additional privacy information should be included in the label. We also emphasize that providers must continue to comply with the Commission's current directives regarding privacy policy disclosures. See 2017 Restoring Internet Freedom Order.
f. Consumer Education/FCC Glossary
51. The Commission requires that providers include at the bottom of all broadband labels a link to the Commission's website, where the Consumer and Governmental Affairs Bureau (CGB) will post a web page with a glossary of terms used on the label. The 2016 labels included a link to the Commission's website with information about specific terms used on the labels and other relevant information about broadband service. No commenter opposed including such a link in the label to a “glossary” of relevant terms, and several commenters from both industry and consumer groups agree that it may be beneficial to have a glossary on our website.
52. The Commission agrees that a glossary would be helpful for both consumers and providers and therefore requires that the label include a link to the Commission's website, where such information will be maintained. The Commission directs CGB, in consultation with other relevant FCC bureaus and offices, to add content to the website, to update the page as necessary, and to ensure that the information is accessible and understandable for consumers. The Commission also directs CGB to make available on the website resources to guide the creation of a uniform label, including templates and other examples. The Commission believes such templates will reduce any burdens on providers, particularly smaller providers, of creating labels, and will facilitate their displaying them within the implementation timelines discussed below. CGB should complete work on the initial website no later than thirty days before the label display requirement becomes effective so that providers can include the appropriate FCC link in their labels and use the templates if desired.
53. Some commenters urge the Commission to require providers to explain in the label itself what broadband speeds consumers will need to perform certain tasks. The Commission concludes that requiring providers to display such information in the label is outside the scope of what the Infrastructure Act requires. Nevertheless, the Commission believes some providers currently do so and agrees that such information may be useful to certain consumers. Thus, the Commission will consider, as part of its consumer education materials, providing examples of what speeds of service are normally required for typical activities such as web surfing, streaming, messaging, and video conferencing to assist consumers in understanding broadband service offerings.
g. Additional Content
54. The Commission declines at this time to require providers to include additional content in the label. In the NPRM, the Commission asked whether there is additional content to consider, given changes in the broadband marketplace, that providers were not required to include in the 2016 labels. Several commenters suggest that the Commission include information about service reliability in the broadband label. INCOMPAS specifically asks that providers have the option to include in the label information about symmetrical speeds and guarantees of reliability. The City of New York supports including information on an ISP's network resiliency, the ability to substantially withstand disaster conditions, the prevalence and scope of service disruptions, and the time to restore service in areas affected by disruptions. The Commission declines to adopt additional requirements at this time because commenters did not identify a reliability metric that was uniformly applicable across ISPs or that was readily comprehensible for consumers. In the FNPRM, however, the Commission seeks comment on whether to include a reliability metric in the label that is uniformly applicable and easily comprehensible, and we seek comment on the details of its implementation.
2. Format of Labels
55. The Commission adopts the proposed format of the 2016 labels so that they resemble the well-known food nutrition label. In adopting the 2016 labels, the Commission consulted with the Consumer Financial Protection Bureau (CFPB) because of its expertise in consumer disclosures in the financial industry ( e.g., credit cards, mortgages, prepaid cards). The labels incorporated CFPB recommendations on typeface, font size, and ample white space. As those labels have shown, uniform formats best enable consumers to compare services and products. Commenters support this approach. As many note, requiring providers to display information about their service offerings in a uniform format will best assist consumers in comparing pricing, fees, performance characteristics, and data allowances across different providers.
56. The Commission thus disagrees with commenters that argue providers should be able to customize the label. The Commission believes such customization undermines the central function of the label—to facilitate comparison shopping between providers and services. Nor is the Commission persuaded by arguments that a standard format will be burdensome for providers. Commenters fail to specify the burdens on providers of following a standard format, making bare assertions along the lines that “rigid design requirements for broadband labels may impede a provider's ability to communicate important information to its customers.”
57. This conclusion does not mean the Commission thinks the labels should be static. Government agencies such as the U.S. Food and Drug Administration (FDA) and U.S. Environmental Protection Agency (EPA) have adjusted their label formats over time to respond to consumer feedback and changing consumer needs. The FDA is seeking information from consumers about the online grocery shopping experience and how food nutrition information is presented online. The EPA has similarly redesigned its fuel economy labels over the years to reflect changes in how vehicles are purchased and changes in consumer driving experiences and preferences. The Commission therefore seeks comment in the FNPRM on whether to consider any updates to the label format to ensure that information about broadband service offerings is conveyed effectively.
58. Machine-Readable Format. The Commission requires providers to make the information included in the label available to the public in machine-readable format. By “machine readable,” the Commission means providing “data in a format that can be easily processed by a computer without human intervention while ensuring no semantic meaning is lost.” See44 U.S.C. 3502(18). Providers should make each label's information available by providing the information separately in a spreadsheet file format such as .csv. These files should be made available on a provider's website via a dedicated uniform resource locator (URL) that contains all of a provider's given labels. The Commission requires providers to publicize the URL with the label data in the transparency disclosures required under 47 CFR 8.1(a) of the Commission's rules. These machine-readable files must provide the same categories of information as those presented in each label, including the unique identifier described below. The Commission directs CGB, in consultation with other relevant bureaus, to make available on the Commission's website resources that may help providers satisfy the machine-readability requirement, such as sample machine-readable spreadsheet files. Further, given the importance of this requirement, the Commission will monitor providers' implementation of machine readability to ensure providers' implementation of this requirement is useful to third parties and the Commission in its data collection efforts.
59. Although section 60504 of the Infrastructure Act does not expressly address the format requirements for broadband labels, implementing broadband labels with a machine-readability requirement advances the statutory objective of providing consumers with sufficient key information needed to evaluate broadband internet access service plans in a manner that is available when they need it and most effective for them. The Commission agrees with commenters that making the label information machine readable will yield a number of benefits to consumers. For example, machine readability will enable third parties to more easily collect and aggregate data for the purpose of creating comparison-shopping tools for consumers. These tools may include browser add-ons or websites that compare plans offered by different providers. Making the information machine readable also helps ensure that the data third parties use is both accurate and up to date. Because providers often “adjust . . . [their] business offerings,” we believe it may be simpler for them to “re-enter the new information and re-upload [their] labels” in a machine-readable format.
60. Machine readability also promotes both competition as well as transparency and accountability. Consumers may use the data collected in this manner to compare typical speeds reported by subscribers versus those reported on a broadband label. And, as AARP explains, the generation of shopping tools like these helps promote “digital equity” for groups lacking the necessary expertise to parse what is often complicated language contained in service agreements. These tools can assist such groups, including older Americans, to more easily obtain the information they need to select the service plan that best meets their needs.
61. Further, requiring ISPs to post machine-readable label information will allow the Commission to more easily collect data about broadband markets. Information collected via machine-readable labels may also make monitoring for compliance with Commission rules and enforcement more efficient as well. A machine-readable label could, for instance, help determine if “a provider has published [a] properly formatted label . . . online.”
62. While each of the foregoing benefits would be sufficient to persuade the Commission to adopt this requirement, the Commission further observes that a machine-readability requirement will make data more easily available for research as well. As New America's Open Technology Institute (OTI) explains, broadband affordability research that is reliant on manual review of existing provider advertising can be a “time-consuming and laborious process that many organizations are unable to undertake.” The Institute for Local Self-Reliance, which itself has “been forced to abandon research projects because of the industry's information gaps,” observes that the broadband consumer label provides “an excellent opportunity to facilitate research efforts” by “allow[ing] researchers to aggregate data at a large scale and analyze this data.” Such research can serve industry, policymakers, consumers, and advocacy groups by providing a clearer picture of the marketplace.
63. The record shows that these benefits can be achieved at a low cost to providers, with no commenters providing cost data to suggest otherwise. The Commission agrees with AARP that making the broadband consumer label data machine readable does not impose a high burden or require special technical expertise. The Commission finds ACA Connect's argument that such a requirement would “tax the resources of small providers with limited in-house technical resources” unpersuasive, as they fail to elaborate why or substantiate their claim with any evidence. Further, the Commission does not believe that publishing the label information in a spreadsheet file would impose a high technical burden. And as noted above, the Commission will offer resources to ease compliance with this requirement.
64. The Commission disagrees with commenters that argue that requiring the label to be machine readable creates difficulties for providers because of “information on the label [that] cannot be boiled down to a binary response.” First, commenters opposed to machine readability fail to describe what kind of information is lost and how that may impact consumer choice. NCTA-The Internet & Television Association (NCTA) only cites descriptions of one-time fees as an example where oversimplification may be required. However, NCTA does not explain how “semantic meaning is lost” or what inaccuracies might be introduced. To the extent that providers request “flexibility” to provide additional information in the label not required by the Commission, information that may not be easily reducible to binary responses, we note that this is not the label's purpose. Indeed, to the extent that machine readability promotes “apples-to-apples” comparisons that do not reflect every nuance that differentiates plans, the Commission agrees with AARP that this does not necessarily represent a flaw. One of the goals of the broadband consumer label is to simplify the process of comparison shopping and make the most critical information readily available to consumers. Thus, the Commission agrees with AARP that conveying the type of information opponents argue may not be picked up by a program “is secondary to label data needed to make apples-to-apples comparisons.” The Commission also agrees with commenters that the benefits outlined above outweigh these concerns over flexibility.
65. NTCA and Wireless internet Service Providers Association's (WISPA) invocation of the nutrition label model, which they argue “is not designed to serve as [an] on-ramp to electronic comparison shopping,” to oppose a machine-readability requirement also proves unconvincing. Nothing about a machine-readability requirement undermines the broadband consumer label's ability to provide “rapid and comprehensible comparison among products.” Simultaneously, shopping for broadband is a more involved process than purchasing a food product. It involves selection of a service that normally requires ongoing, periodic payments, that may involve a contract, and that impacts various facets of an individual's life. Such a choice reasonably takes more time and research than that spent in a food aisle, making NTCA and WISPA's comparison in this regard inapt.
66. The Commission also disagrees with AT&T's assertion that machine readability is not “designed to help the consumer at the point of sale but rather to facilitate third parties' desire to conduct various forms of research or analysis,” which AT&T claims is “not the purpose of the labels.” As described above, machine readability enhances the point-of-sale experience in a variety of ways, including in the form of third-party shopping comparison tools. While AT&T claims that machine readability “could fatally compromise broadband providers' ability to . . . convey accurate information on the labels,” AT&T does not elaborate as to how. To the extent that machine readability fails to capture all the benefits of a given plan, the Commission agrees with Consumer Reports that the Commission can expect “the creativity of ISPs” will lead to solutions for “further explain[ing] the details of their service offerings to appeal to a wide range of audiences.”
67. We recognize, however, that the Commission did not include a machine-readability requirement in 2016 and that this will take some additional effort. The Commission therefore delays compliance with this requirement until one year after OMB completes its review of this new information collection.
68. Unique Plan Identifiers. The Commission requires ISPs to develop unique identifiers for each of their plans and attach them to the broadband label. The unique identifier should consist of a unique ID for fixed plan or mobile plan (“F” for fixed plans and “M” for mobile plans), followed by the broadband provider's FCC Registration Number, and ending with a provider-chosen string of precisely 15 alphanumeric characters uniquely identifying the specific plan within the broadband provider's offerings. Providers must use the FCC Registration Number that is used when submitting data to the Broadband Data Collection. The Unique Plan Identifier shall not include special characters such as, &, *, and %. For example, AT&T could specify a fixed broadband offering as F + 0005937974 + 123ABC456DEF789. This would appear on the label as F0005937974123ABC456DEF789. Unique identifiers should be sufficiently distinctive so that third parties and the Commission can identify the specific plan identified by the unique identifier. ISPs might consider use of other indicators, such as ZIP Code of where the plan is offered, to set their identifiers apparat. Additionally, reuse of identifiers must not occur; even if a given plan is no longer offered, its string should not be repurposed for a new or different plan.
69. Unique identifiers are useful for a variety of purposes. For example, use of a unique identifier would enable ISPs, which often change their plan offerings, to reuse a given plan's name without creating confusion. While NCTA argues that unique identifiers are unnecessary for this purpose, they do not describe the “significant burdens” they claim would be imposed. USTelecom notes that requiring provider-created unique identifiers would not “creat[e] undue burden on providers or increas[e] administrative costs.”
70. Additionally, unique identifiers may be helpful in reducing ambiguity in other contexts as well. Third-party shopping tools might benefit from ISPs' use of unique identifiers. And researchers may find it helpful having a shared, consistent means of identifying ISPs' plans as opposed to use of descriptive language that could result in confusion about which plan is being discussed.
71. Accessibility for People with Disabilities. The Commission requires that the label be accessible to people with disabilities at all points of sale. In so doing, we emphasize our continued commitment to ensuring that broadband networks are accessible to and usable by individuals with disabilities. As the Commission noted in the NPRM, in proposing the 2016 labels, the CAC determined that ISPs could best ensure accessibility to printed and online broadband information by relying on well-established legal requirements included in the Americans with Disabilities Act (ADA) and by following the guidance developed by the Web Accessibility Initiative.
72. Based on the record, the Commission strongly encourages ISPs to comply with the well-established legal requirements included in the ADA and the Web Content Accessibility Guidelines (WCAG). The WCAG are routinely updated; therefore, providers' websites would be modified over time consistent with such updates. When providing the labels, ISPs must follow the ADA and associated guidance provided by the Department of Justice, 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.” See28 CFR 36.303, https://www.ada.gov/reg3a.html. The American Printing House for the Blind's (APH) print guidelines are the most concise and relevant set of recommendations for readable design: https://www.aph.org/research/design-guidelines. The APH Guidelines cover the effective usage of whitespace, heading elements, tables, and more.
73. The Commission agrees with the CAC and the American Council of the Blind (ACB) that relying on current accessibility technologies provides an ISP the best likelihood of ensuring that consumers with disabilities have equivalent access to information about, and the opportunity to compare, broadband services.
74. Some commenters advocate for additional requirements. In the FNPRM, the Commission seeks comment on ACB's proposal that direct video assistance be provided for broadband labelling. The City of New York proposes to require Braille or a Quick Response (QR) code with a tactile indicator for blind or visually impaired consumers at the point of sale. The Commission also seeks comment on the WCAG 2.1 standard that suggests providing text alternatives for any non-text content so that it can be changed into other forms people need, such as large print, Braille, speech, symbols, or more simple language.
75. Display in Languages Other Than English. The Commission requires that providers display online and printed labels in English. The Commission also requires providers to make labels available in any other languages in which the ISP markets its services in the United States. For example, if the ISP's marketing materials on its website are available in Spanish, the Spanish version of the website must display the associated broadband labels in Spanish as well. This requirement does not apply to the provider's machine-readable spreadsheet files, which should also be displayed in English. The Commission notes that AT&T provides internet materials in English and Spanish because those are the languages in which it advertises. Under the labeling requirements, AT&T, and any other provider advertising in Spanish, must include a Spanish version of the broadband label. The Commission agrees with commenters that believe it is critical that the broadband label be accessible to all consumers, including those whose primary language is not English, and applauds those providers who currently make information available on their websites in multiple languages. The Commission also encourages providers to reach out to trade associations and other organizations for assistance in translating the label into other languages if doing so would assist certain consumers in shopping for broadband service.
76. The Commission agrees with the many commenters that argue that this requirement promotes digital equity. Some Members of Congress observe that, out of the 53 million Hispanic people living in the United States, or 17% of the population, more than 38 million people speak Spanish as a primary language at home, and that Asian Americans are among the fastest-growing ethnic population in the United States, estimated to reach 46 million by 2060. They point out that the nearly 22 million Asian Americans represent over 48 different subethnicities that include a diverse and rich spectrum of spoken languages and dialects. They explain that it is therefore important to ensure that consumer-friendly labels “leave no one feeling lost or uninformed because of a language barrier.” The Commission also notes OTI's point that translations are particularly important for historically marginalized communities that already face higher barriers to internet adoption and may be more proficient in other languages.
77. The Commission recognizes that the need for multi-language accessibility goes beyond translating labels directly from English. The Commission therefore encourages providers to review their translations for context and vernacular language by native-level speakers who work directly with community members to ensure the language is not only accurate, but also easily accessible and understandable to target audiences.
78. At the same time, the Commission does not have a sufficient record on which to require providers to display labels in languages in which they do not market their services. In this regard, the Commission notes that some commenters oppose such requirements, asserting that it would be extremely cumbersome and expensive for ISPs to do so. The Commission therefore seeks comment to build a more detailed record on additional language requirements in the accompanying FNPRM, published elsewhere in this issue of the Federal Register .
3. Point of Sale and Label Display Location
79. The Commission requires ISPs to display the label at the “point of sale,” which is defined in the revised rule both in terms of time and location. As for time, the Commission defines point of sale as the moment a consumer begins to investigate and compare broadband service plans available to them at their location. As for location, the Commission defines “point of sale” as both ISP websites and any other channels through which their service is sold, including ISP-owned retail locations, third-party owned retail locations, and over the phone.
80. The rule the Commission adopts builds on the CAC's point of sale recommendation; however, the Commission refines the CAC's definition of point of sale to make clear that the time the consumer seeks to determine the best broadband internet access service product for their needs is the time at which the consumer views specific broadband plans available to them at their service location (often after the consumer enters address information on the provider's website or conveys it to a sales representative). Broadband labels do not need to be included on mass marketing channels or prior to customers specifying their service location. The Commission believes this approach avoids saddling ISPs with the burden of displaying a potentially unwieldy number of labels, most of which would not be of value to the consumer if they cannot receive the particular service at their location.
81. Websites. The Commission agrees with the majority of commenters that support requiring ISPs to display labels on their websites. As discussed above, providers must display the labels after the consumer enters any required location information. Once the consumer has done so, the label must appear on the provider's primary advertising web page that identifies the plans available to the consumer. Location information may be necessary to determine if the service or particular plan is offered in the consumer's location. Other than providing location information, the labels must be readily available to all consumers without requiring them to create an account or log into an existing account. We consider such primary web page to be the point of sale—where consumers begin to shop for and compare broadband service offerings available at their location. In addition to this requirement to display the label at the time the consumer views the specific plans available to them, providers may also display the label on their website's homepage or elsewhere on the website during the shopping period.
82. Providers must display the actual label—not simply an icon or a link to the label—in close proximity to the associated plan advertisement. By requiring providers to place the label close to their advertising, the Commission expects consumers will more easily be able to make a side-by-side comparison of the advertised plan's cost and features with the information required in the label.
83. This approach contrasts with allowing providers to merely display an icon or link to the label from their main website in that it connects the consumer to the relevant label and better meets Congress' goal of ensuring that consumers have easy access to vital information about the advertised plan. The Commission agrees with OTI that “[p]roviders must be required to prominently display the label . . . [t]his means it has to be more than just a hyperlink to a separate page or pop-up window.” Consumers should not be forced to further navigate a provider's website to find the label or toggle back and forth to compare the advertisement with the label. The Commission believes all the information a consumer needs to make a purchase decision should be visible to the consumer when they are interacting with the provider's marketing materials. Such information should be presented in one location to simplify the comparison shopping process and should be readily available. As with the FDA's nutrition label, consumers should have access to broadband label information at the same time the product is offered for sale. For similar reasons, the Commission concludes that displaying the label via an icon that must be opened or expanded does not afford consumers the opportunity to easily view the label alongside the provider's advertisement. While some commenters assert that displaying the actual label may lead to a crowded web page, the Commission believes that providers can design their websites in ways that permit them to display their marketing information in close proximity to the label information.
84. The Commission nevertheless aims to give providers flexibility in how they display labels, e.g., the Commission does not require any particular font size for the label information at this time; however, providers should ensure that the labels are prominently displayed on any device on which the consumer accesses and views the labels, including mobile devices. In the accompanying FNPRM, published elsewhere in this issue of the Federal Register , the Commission seeks comment on whether compliance tools such as style guides might be useful to providers in creating their labels and ensuring they are prominently displayed and easily accessible to consumers at all points of sale.
85. The Commission thus disagrees with commenters that advocate for a web link to the label and find that such commenters do not articulate any particular challenges in displaying the actual label alongside a provider's marketing materials. The Commission concludes that the benefits of a label displayed prominently and immediately when the consumer accesses the provider's broadband offerings available to them outweigh any potential additional costs to providers.
86. Alternate Sales Channels. Based on the record, the Commission also requires ISPs that use alternate sales channels ( e.g., company retail locations, third-party owned retail locations, or over the phone) to make the label available to consumers at each point of sale. In such situations, the Commission agrees with those commenters that contend that providers should not necessarily be required to provide a hard copy of the label. The Commission finds that requiring providers to make the label available in hard copy may be unnecessarily burdensome to some providers. If, however, the provider cannot ensure the consumer will be able to access the label either with an internet connection at home or in the retail location, it must make the label available in hard copy. Thus, in the case of alternate sales channels, while a provider may satisfy the label requirement by providing a hard copy of the label, we find it may do so through other means. This could include directing the consumer to the specific web page on which the label appears by, for example, providing internet access in the retail location or giving the customer a card with the printed URL or a QR code. If, however, the consumer does not have internet access at home or elsewhere, the ISP must ensure that the consumer can use the printed URL or QR code in its retail location. Or this could include orally providing information from the label to the consumer over the phone. In such circumstances, the provider must read the entire label to the consumer over the phone. Providers shall document each instance when it directs a consumer to a label at an alternate sales channel and retain such documentation for two years.
87. E-Rate and Rural Health Care Providers. The Commission finds that “point of sale” for purposes of the E-Rate and RHC programs is the time when a service provider submits its bid to a program participant. Thus, the Commission requires E-Rate and RHC providers to provide a label along with any competitive bids submitted pursuant to the E-Rate or RHC Program competitive bidding process. In the limited instances in which a service provider provides services without submitting a bid and has not yet provided a label to the E-Rate or RHC applicant, it must provide the label with the first invoice it submits to the applicant.
88. Label Display on Customer Online Accounts. The Commission requires ISPs that offer online account portals to their customers to make each customer's label easily accessible to the customer in such portals, and conclude that doing so will benefit consumers following the conclusion of their initial shopping experience. After purchasing broadband service, consumers should be able to easily access and review the terms of their existing plans to ensure they are receiving the services and price they agreed to at the time of purchase. By being accessible at the consumer's online account page, the label also assists consumers in identifying billing inaccuracies and unexpected fees. Additionally, this requirement furthers the goal of assisting consumers with comparison shopping by allowing consumers to more easily compare their current plans to alternative plans when shopping for broadband service in the future. Finally, the Commission believes that associating a label that is already displayed on a provider's primary advertising web page with a customer's online account should not be overly burdensome, and that the benefits to consumers far outweigh any costs to providers. In order to allow ISPs sufficient time to make any necessary system changes, the Commission sets compliance with this requirement at one year after the Office of Management and Budget completes its review of this new information collection.
89. The Commission declines, however, to require ISPs to display the label on a consumer's monthly bill. The Commission is cognizant of providers' concerns that adding a graphic, or photo file such as a jpeg, of the label to printed bills or enclosing an insert of the label with billing statements may be costly and potentially burdensome. Providers also assert that any necessary changes to billing systems could take months for ISPs to complete. The Commission believes that adopting a requirement that the broadband label be made easily accessible to consumers in their online account portal best balances the consumer transparency goals while minimizing the burden to providers. The Commission therefore concludes that, at this time, the burdens on ISPs of a requirement to display the label on a consumer's monthly bill outweigh the benefits to consumers who can access the labels in alternative ways.
90. The Commission emphasizes that consumers have multiple avenues with which to access and review the label information associated with their existing plans after purchasing service. As discussed in detail above, labels for current offerings must be prominently displayed and readily available on ISP websites, at alternate sales channels, and in customers' online account pages. In addition, as discussed below, providers will be required to archive all labels for two years once a plan is no longer available for purchase by new customers. They must also provide the archived labels to existing customers, upon request, within 30 days. Thus, the Commission finds that the rules adopted provide consumers with accessible means of obtaining the broadband label after purchase. While the Commission concludes at this time that the burdens associated with displaying or enclosing the broadband label on monthly billing statements outweigh the associated benefit to consumers, the Commission will continue to monitor the effectiveness of the current display requirements.
C. Grandfathered Plans and Archive of Labels
91. The Commission requires that ISPs display labels for plans currently offered to new customers, but ISPs are not required to create and display labels for services used by current customers that are no longer available to new customers. The Commission also requires ISPs to archive all labels for two years, as discussed below. The Commission notes that providers participating in the Affordable Connectivity Program may be subject to different reporting and retention requirements for plans where subscribers are receiving the ACP benefit.
92. The Commission is persuaded that the broadband labels displayed at the point of sale should be only for services that are currently offered to new customers. A principal goal of the label is to allow consumers to comparison shop among services. Requiring such labeling for services no longer available to new customers has a substantially diminished benefit for purposes of comparison shopping. And such labels may even confuse consumers if those plans are not actually available to them. Further, ISPs persuade the Commission that the burden of creating labels for grandfathered plans is substantial. For example, AT&T notes that “approximately half of [the company's] hundreds of grandfathered fixed broadband plans have ten or fewer customers.” In addition, “AT&T has thousands of mobile broadband plans that have been grandfathered for years, and of those old plans, there are more than 5,000 plans that have a combined total of approximately 19,000 customers remaining ( i.e., approximately four customers per plan).” The Commission thus sees a potential significant burden to displaying labels for such plans without a countervailing benefit. Therefore, in balancing these disadvantages against any potential consumer benefit, we decline to require labels for grandfathered plans.
93. While the Commission rejects requiring ISPs to create labels for older plans or to continue to display labels for plans no longer available to new customers, the Commission is persuaded that they should maintain an archive of all labels that have been removed from their websites or alternate sales channels. The Commission requires ISPs to archive labels for at least two years after the service plan is no longer offered to new customers and the label is no longer displayed at the point of sale. The provider must provide any archived label to the Commission, upon request, within thirty days. It must similarly provide any archived label to an existing customer whose service plan is associated with the particular label, upon request and within thirty days. In other contexts, the Commission similarly requires regulated entities to retain documentation for a two-year period and to provide such information upon request. This requirement will aid enforcement of labeling requirements, which might arise if consumers file informal complaints or if the Commission or any state public service commission requires access to the archived labels to investigate potential inaccuracies in the labels. The archive would include each label for no less than two years from the time the label is removed from the provider's website or alternate sales channel and, thus, no longer displayed at the point of sale.
94. ISPs must therefore archive all labels required by this final rule. This includes evidence sufficient to support the accuracy of the labels' content, such as the data that supported the performance information that appeared on the label, along with any links to relevant network management practices and privacy policies. Such information will assist the Commission in any enforcement action. The Commission expects that providers already keep such information in the event they are asked to support their marketing and transparency rule disclosures, and that this will therefore not represent a significant incremental burden.
95. Providers are not required to make the archived labels available to the general public, but as discussed above, they must provide any archived label to the Commission or a current customer upon request. As an alternative to providing the actual label, the ISP could provide a URL or QR code if that was how the customer accessed the label at the time of purchase. Specifically, a provider must allow an existing customer to request and obtain a copy of the archived label for the plan to which they currently subscribe once the label is no longer displayed at the point of sale. This will assist consumers in determining whether they are getting the service expected based on the price and quality that was offered. It will also give consumers the information they need to complain to the provider or to cancel service or switch to another provider if necessary. Further, the Commission concludes that, without such an archive of older labels, the Commission would be unable to fully investigate consumer complaints alleging, for example, that a service provider failed to comply with the broadband label requirements or that a particular label was inaccurate.
D. Direct Notification of Changes to Terms
96. The Commission declines to adopt a requirement that ISPs directly notify consumers about changes to the terms and conditions in the displayed labels. Most commenters that addressed the issue urge the Commission not to adopt such a requirement, arguing that such notification is unnecessary. After considering all the record evidence, the Commission concludes that requiring providers to notify enrolled consumers each time a service offering displayed in a label changes could be burdensome for providers with minimal benefits for consumers. Consumers who already are notified about rate changes or speed upgrades through their bills or other mailings will likely be overwhelmed or even confused by additional notices about changes in label information. And while the record is unclear as to how many providers routinely notify their customers of changes to rates and other terms, the Commission believes the labels are primarily intended to educate consumers at the time of purchase. Further, the Infrastructure Act does not seem to contemplate such notifications, and therefore the Commission declines to adopt them at this time. This finding, however, does not relieve an ISP from any other related consumer notification requirement agreed to in its terms of service, or compliance with other rules or regulations.
E. Interplay of New Label Requirement With Transparency Rule
97. The Commission emphasizes that where this final rule does not modify or eliminate a transparency rule requirement which was previously established, that requirement is still in place. See generally 2017 Restoring internet Freedom Order. While the new label requirement and the existing broadband transparency rule are interrelated, an ISP's display of the label alone will not satisfy its transparency rule obligations under 47 CFR 8.1(a) of the Commission's rules to publicly disclose certain information on its website or through transmittal to the Commission. Although there is overlap between the purpose of broadband labels and that of the transparency rule, those purposes are not identical. The fact that the two requirements are not coextensive should come as no surprise given the different—albeit overlapping—purposes served by the two requirements. For example, helping consumers make informed choices regarding broadband internet access service plans is a goal of both broadband labels and the transparency rule. Broadband labels, however, are designed to play a unique role in that regard by providing a quick reference tool enabling easy comparisons among different service plans at the time of purchase. By contrast, the transparency rule seeks to enable a deeper dive into details of broadband internet service offerings, which could be relevant not only for consumers as a whole, but also for consumers with particularized interests or needs, as well as a broader range of participants in the internet community—notably including the Commission itself.
98. ISPs argue that the Commission should eliminate the requirements in § 8.1(a), maintaining that the problems of a potentially burdensome broadband label would be compounded if the Commission also retained the requirements in the current transparency rule. They contend that it would be duplicative and unnecessary to require, going forward, that providers maintain transparency disclosures that include information reported separately in broadband labels.
99. The Commission concludes that compliance with the transparency rule does not satisfy the label's content, format, and display location requirements. For example, the transparency rule does not require disclosures about the ACP; the label, on the other hand, must identify whether the provider participates in the ACP and display a link to information about the ACP. Similarly, the transparency rule does not require specific information about introductory and post-introductory rates and introductory periods. The Commission notes, however, that compliance with the broadband label requirements may satisfy a provider's obligations under § 8.1 of the Commission's rules with respect to specific sections of the transparency rule that are also incorporated into the label.
100. The Commission also concludes that displaying a compliant label cannot by itself satisfy the transparency rule. For example, the link in the label to certain information about a provider's network management practices alone may not satisfy the transparency rule requirement. The provider's transparency rule disclosures via its website or transmittal to the Commission must still disclose all information required by the rule. Similarly, the label does not include the transparency rule's requirement to disclose packet loss information. Providers must therefore take steps to comply with the labeling and transparency rules independently to the extent that the details of the requirements diverge. Accordingly, compliance with the labeling requirements is not a safe harbor from compliance with the transparency rule.
F. Enforcement Issues and Consumer Complaints
101. Aside from the issues discussed below, the Commission declines to adopt new rules, practices, or procedures specifically for enforcement of the label adopted in this final rule. Based on the record, the Commission finds that its existing enforcement mechanisms should enable the Commission to enforce the new label requirements, including the accuracy of the label's content and the sufficiency of its format and display location. The Commission thus will use the identical procedures to enforce the broadband label requirements adopted here.
102. The Commission is persuaded that the Commission's current transparency enforcement procedures are appropriate, and that the Commission's existing forfeiture authority and other remedies are sufficient to deter noncompliance and to hold accountable those providers that do not comply with the label requirements. In addition, as discussed above, the Commission requires providers to archive all labels that they display, which will allow the Commission to obtain labels and investigate the accuracy of the labels faster and more efficiently.
103. Finally, the Commission rejects calls for a type of “education” period during which it puts on hold any enforcement related to the label. The Commission believes providers will have sufficient time during the implementation periods discussed below to create and display complete and accurate labels for all of their offered plans. In addition, the Commission intends to develop resources for providers and consumers about the new disclosure requirements, including education on broadband terminology, compliance guides, and label templates.
104. The Commission thus disagrees with commenters that advocate for unique enforcement of the broadband label and dedicating specific agency resources toward enforcing the label requirements, rather than relying on the Commission's existing enforcement procedures. The Commission intends to process and serve informal consumer complaints regarding broadband labels as vigorously as we do other informal complaints, and we are confident that the existing processes are sufficient for that purpose.
G. Implementation Timelines
105. The Commission requires that all ISPs comply with the rules adopted within six-month and one-year compliance periods (following publication in the Federal Register of notification that OMB has completed review of the adopted rules). In the NPRM, the Commission sought comment on the best ways for providers to implement the proposed labels, including the timelines within which they should implement them. The Commission proposed to make the rules effective six months following publication in the Federal Register of OMB's approval of the adopted rules, asking whether this would allow sufficient time for providers to comply with the new requirements. The Commission asked whether it should consider a different implementation timeline or temporary exemption for smaller providers to allow them more time to come into compliance with the label requirements.
106. Based on the record, the Commission declines to adopt an exemption from the label requirements for smaller providers. The Commission agrees with OTI that we must ensure that every consumer benefits from the labels, not just those who are served by the largest providers. Rural Americans, who often receive their broadband service from smaller ISPs, also deserve transparency about broadband services and to be given access to information necessary to shop for such services. Moreover, as some commenters point out, the Infrastructure Act directs the Commission to adopt labels for all ISPs and does not distinguish between larger and smaller providers. The Commission also believes it is critical that labels across all providers be uniform in content and format and that they be accurate. Thus, the Commission declines to limit the amount of information smaller providers must display on the labels or to, for example, exclude such providers from the Commission's informal complaint processes.
107. The Commission nevertheless recognizes that implementing the label requirements may require some additional time, and therefore establishes a six-month period for most providers to come into compliance before the new requirements take effect. The Commission agrees with those commenters that argue that allowing providers an additional six months following announcement in the Federal Register that OMB has completed its review of the rules will ensure that most ISPs can implement necessary changes in a cost-effective way that makes sense for their individual business models and potential customers. Commenters that advocate for a longer implementation period do not specify why an additional three or six months beyond the proposed six-month period is necessary for most providers to create and display the required labels. And the Commission believes consumers should not have to wait for as long as a year before they enjoy the benefits the labels will provide. The Commission therefore finds that six months represents a reasonable timeframe for most providers to take steps to ensure that labels are adequately displayed on websites, that links to additional information are effective, and that the required information is provided in accessible formats.
108. The Commission, however, adopts a one-year implementation period for providers with 100,000 or fewer subscriber lines. Some commenters contend that affording smaller providers at least one year to comply allows them to budget for any additional expenses associated with the labels. The Commission is persuaded that implementing broadband labels may require providers to complete certain tasks, including compiling the information that must be presented in the label; incorporating the information into the label format; posting labels on their websites; developing and implementing procedures for making any necessary changes to the labels, including website updates; and training customer service representatives, sales agents, and other personnel. Such tasks may require more time for providers that are less likely to have in-house attorneys and compliance departments to assist in preparing their broadband labels, and thus will need to engage outside legal resources to implement several proposed requirements. Commenters generally did not challenge allowing some additional time for such providers to come into compliance.
109. The record provided little information on how best to define which providers should benefit from any longer implementation period. In similar contexts, the Commission has defined the relevant entities in various ways. For instance, in its 2013 Rural Call Completion Order,78 FR 76218 (Dec. 17, 2013), the Commission excepted providers with 100,000 or fewer subscriber lines, aggregated across all affiliates, from certain recordkeeping, retention, and reporting rules. The Commission subsequently adopted this definition for purposes of the temporary exemption from the enhanced transparency rule. Accordingly, the Commission similarly adopts an implementation period of one year (from the announcement that OMB has completed its review of the new rules) for those providers of broadband internet access service (whether fixed or mobile) with 100,000 or fewer broadband subscribers as per their most recent Form 477, aggregated over all the provider's affiliates. The Commission believes the additional six months will allow these providers the necessary time to comply with the label requirements. These providers must still comply with the requirement to make the contents of the labels machine readable within one year of OMB's completion of review of the new information collection.
H. Legal Authority
110. As the Commission explained in the NPRM, we believe the Infrastructure Act grants us authority to adopt the label requirements for ISPs. No commenter disagrees with this conclusion. In addition, the Commission also explains above how displaying the required broadband label enables providers to satisfy aspects of their disclosure obligations under the transparency rule. The Commission thus also finds that the authority the Commission historically has invoked in support of a transparency rule for broadband internet access service providers—in particular, sections 13 and 257 of the Act and the Commission's Title III licensing authority in the case of mobile broadband providers—provides additional authority for our broadband label requirements. In the 2017 Restoring Internet Freedom Order, the Commission relied on section 257 of the Act as authority for the transparency rule. Although section 257 subsequently was amended to shift aspects of that provision to the new reporting requirement enacted in section 13 of the Act, “it was not altered in any material respect for purposes of the Commission's authority in this regard.” In addition, the 2015 Open Internet Order,80 FR 19737 (Apr. 13, 2015), relied on Title III licensing authority over mobile broadband providers for authority for its rules in that respect, including the transparency rule. Although the 2017 Restoring Internet Freedom Order explained that the Commission chose not to rely on that Title III authority for conduct rules governing mobile providers insofar as it did not find sufficient authority for conduct rules governing other providers, that Order did not provide reasons not to rely on Title III authority for the transparency rule adopted there (or for disclosure requirements like the broadband label requirements adopted here). Since the broadband label requirements will apply to all ISPs, the Commission thus finds no reason to forgo relying on Title III authority for the broadband label requirement for mobile broadband providers here.
111. Further, the required broadband labels will serve as a source of information required to be collected under the ACP program. The Commission thus finds the broadband label requirements further supported by our ACP authority. Similarly, insofar as the broadband labels will be tools to advance the E-Rate and Rural Health Care universal service programs, authority for the broadband label requirements comes from section 254 as well.
112. Similarly, the majority of commenters either do not raise any First Amendment concerns or argue that mandatory broadband labels similar to those approved in 2016 would not violate providers' First Amendment rights. Some commenters, however, argue that the proposed label requirements could raise First Amendment concerns, and we address those arguments.
113. The Commission concludes that the rules adopted are disclosure rules implicating commercial speech, and that they do not unconstitutionally burden broadband internet service provider speech. As shown below, the Commission believes that the more lenient Zauderer ( Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)) standard, rather than the intermediate Central Hudson ( Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557 (1980)) standard, applies to the rules adopted herein. However, even assuming arguendo that the Central Hudson standard applied, the Commission concludes the rules would satisfy that standard as well.
114. The Supreme Court has long recognized that the government “has substantial leeway in determining appropriate information disclosure requirements for business corporations.” See Pac. Gas & Elec. Co. v. Pub. Util. Comm'n of Calif., 475 U.S. 1, 15 n.12 (1986). Thus, “regulations that compel `purely factual and uncontroversial' commercial speech are subject to more lenient review than regulations that restrict accurate commercial speech.” See, e.g., New York State Rest. Ass'n. v. New York City Bd. of Health, 556 F.3d 114, 132 (2nd Cir. 2009) ( NY State Rest. Ass'n.); Nat'l. Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 113 (2d Cir. 2001) ( Nat'l Elec). That latitude stems from the “material differences between disclosure requirements and outright prohibitions on speech.” See Zauderer, 471 U.S at 650. See Int'l Dairy Foods Ass'n v. Boggs, 622 F.3d 628, 641 (6th Cir. 2010).
115. Disclosure requirements, unlike speech bans, are not designed to prevent anyone from “conveying information.” See Zauderer, 471 U.S at 650. Instead, those requirements “only require [persons] to provide somewhat more information than they might otherwise be inclined to present.” Where the required disclosure involves “only factual and uncontroversial information,” the required disclosure “does not offend the core First Amendment values of promoting efficient exchange of information or protecting individual liberty interests.” See Nat'l Elec., 272 F.3d at 113. NY State Rest. Ass'n., 556 F.3d at 132.
116. To the contrary, because “the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides,” a person's “constitutionally protected interest in not providing any particular [noncontroversial] factual information . . . is minimal.” Zauderer, 471 U.S. at 651 (emphasis in original). See Milavetz, Gallop, & Milavetz v. U.S., 130 S.Ct. 1324, 1339-40 (2010) ( Milavetz). The Supreme Court thus has held that the Zauderer standard, and not the intermediate Central Hudson standard, applies to the required disclosure of purely factual, non-controversial information that does not suppress speech.
117. A few commenters suggest that label requirements might not satisfy the Zauderer standard if they “forc[e] providers to publish specified information in pre-determined formats.” We disagree. The new rules requiring ISPs to display, at the point of sale, labels containing factual information about their service options are, on their face, a disclosure requirement. Although there is a specific format for the label, the purpose and effect of rules requiring providers to identify their prices, performance metrics, data allowances, and links to their privacy policies amount to the disclosure of broadband service offerings. All the disclosures compelled by the rules involve “only factual and uncontroversial information.” Zauderer, 471 U.S. at 650.
118. The Commission finds that the rules adopted easily satisfy the Zauderer standard. The purpose of the rules is to ensure that consumers have the information necessary to understand the broadband services offered by providers, to easily determine the prices for those services, and to comparison shop among different providers. As explained elsewhere in this final rule, the means directed by Congress to achieve that objective, i.e., labels at the point of sale, simply enhances consumers' ability to purchase services that meet their needs and budgets. By giving consumers an easier way to shop for and purchase the broadband services they need, the rules are “reasonably related to the [governmental] interest” in making sure consumers have the information they need to make informed choices in the broadband marketplace. The First Amendment is satisfied, therefore, because there is a “rational connection” between the purpose of these commercial disclosure requirements and “the means employed to realize that purpose.” See Nat'l Elec., 272 F.3d at 114-15; Zauderer, 471 U.S. at 651.
119. Even if the intermediate three-part Central Hudson standard applies, however, the Commission finds that the rules pass constitutional muster. Central Hudson sets forth an intermediate scrutiny standard that provides that a regulation of commercial speech will be found compatible with the First Amendment if: (1) there is a substantial Government interest; (2) the regulation directly advances the substantial Government interest; and (3) the proposed regulation is not more extensive than necessary to serve that interest. See Central Hudson, 447 U.S. at 566. Commercial speech that is potentially misleading has less First Amendment protection, and misleading commercial speech is not protected at all and may be prohibited. As the Commission previously concluded in the Truth-in-Billing First Report and Order,64 FR 34488 (June 25, 1999), the Government has a substantial interest in ensuring that consumers are able to make intelligent and well-informed commercial decisions. The 2017 Restoring Internet Freedom Order similarly identified a substantial government interest in “encouraging competition and innovation.”
120. The Infrastructure Act directs the Commission to promulgate rules to require the display of broadband consumer labels tailored in a manner designed to effectively provide consumers information they need to evaluate broadband internet access service plans through the tool of broadband labels. And the Commission's other statutory obligations include promoting the justness, reasonableness, and affordability for consumers of service charges and practices and promoting marketplace competition. The Commission believes the regulations adopted are designed to directly advance the government's substantial interest by providing consumers with the basic tools necessary to understand the broadband services they are purchasing and the prices for those services through broadband labels carefully calibrated to include certain essential information presented in a manner that makes it most likely to be usable and useful. In addition, they are designed to protect consumers from contracting for service where the terms of service are either unexplained or presented in a confusing manner.
121. Under the first part of the Central Hudson test, the Commission finds that we have a substantial interest in assisting consumers in making informed decisions when purchasing broadband service, and in encouraging competition and innovation. The record is clear that point-of-sale labels support the objective of helping consumers make informed choices based on accurate disclosures about broadband internet service offerings tailored to focus on the information likely to be key to comparisons using those labels. Commenters overwhelmingly support a label that provides key information in an accessible and understandable format, with flexibility to provide additional information, such as links to other resources. In an effort to increase accessibility to broadband service for Americans, Congress also concluded that consumers needed better access to information about available services, i.e., simpler and easy to understand.
122. The Commission finds that the rules adopted also satisfy Central Hudson's second prong by advancing the government's substantial interest. The Commission, through the Truth-in-Billing regulations, has a longstanding practice of regulating the format and organization of carrier invoices in order to “aid customers in understanding their telecommunications bills.” See47 CFR 64.2400(a). As discussed above, the record persuades us that these new rules, i.e., requiring ISPs to disclose information about their services in a consistent format at the point of sale, are needed to advance our interest in assisting consumers in fully understanding the available broadband offerings and to make informed decisions about what services to purchase. If consumers can readily identify and understand key information about the specific services offered by each provider, they can take action using those broadband labels to compare different offerings and avoid purchasing services that do not serve their needs. Similarly, labels that include the same information in a conspicuous location and that are presented in the same format across providers will enable consumers to hold those providers accountable by making inquiries and filing complaints should the services they receive or the prices they pay not match what ISPs display in the labels. Tailored disclosures promise to provide a metric against which these customers can judge whether their broadband services satisfy the speeds, data usage, and other terms advertised by broadband providers. That these new rules advance our stated interest is further confirmed by information in the record that consumers have difficulty understanding the broadband services available to them, what those services will allow them to do, and the prices they will ultimately pay. And given the interplay between the broadband label requirements and the transparency rule, it also advances the governmental interest in encouraging competition and innovation consistent with the analysis of the 2017 Restoring Internet Freedom Order.
123. With respect to the third prong of Central Hudson, the rules adopted are no broader than necessary to serve our substantial interests. To satisfy this prong of the test, the Commission does not have to demonstrate that it has adopted the least restrictive means of achieving our objective, that the rules perfectly fit our stated interest, or that the Commission has adopted the best of all conceivable means for achieving our objective. See Bd. of Trs. of State Univ. of New York v. Fox, 492 U.S. 469, 477 (1989); Nat'l Cable & Telecomms. Ass'n v. FCC, 555 F.3d 996, 1002 (DC Cir. 2009) ( Nat'l Cable). Instead, this prong of the Central Hudson test requires only that the rules be proportionate to the substantial interest we intend to advance. Given the magnitude of the problem reflected in the record, the rules adopted represent an incremental, moderate approach to giving consumers critical information about broadband services. For example, the requirement to identify the monthly price, performance information, and terms and conditions for broadband services in a format that consumers are familiar with—a nutrition-like label—is less intrusive than the alternative of, for example, requiring that all the information be listed in a consumer's bill for service or prohibiting the use of any line items that describe the fees that make up the monthly price. And the rules still permit providers to advertise their services independent of the information they must present in the labels. The rules are narrowly crafted so that they are no more extensive than necessary to further our objective of enhancing the ability of consumers to make informed decisions when purchasing broadband service, and thus they satisfy the third prong of Central Hudson.
Final Regulatory Flexibility Analysis
124. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the NPRM released in January 2022 in this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. Comments filed addressing the IRFA are discussed below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the Rules
125. The Report and Order adopts rules to implement section 60504 of the Infrastructure Act), to ensure that consumers have an easy way to understand broadband internet access service providers' (ISPs' or providers') prices, data allowances, and performance in a simple-to-understand format that does not overwhelm consumers with too much information. The ability to make side-by-side comparisons of various broadband service offerings of an individual provider or the service offerings of alternative providers is essential for consumers to make informed decisions.
126. The Infrastructure Act directs the Commission “to promulgate regulations to require the display of broadband consumer labels, as described in the Public Notice of the Commission issued on April 4, 2016 (DA 16-357), to disclose to consumers information regarding broadband internet access service plans.” Further, the Infrastructure Act requires that any broadband consumer label adopted by the Commission “shall include information regarding whether the offered price is an introductory rate and, if so, the price the consumer will be required to pay following the introductory period.”
127. In the Report and Order, the Commission adopts rules to meet its statutory obligations under section 60504 of the Infrastructure Act. Specifically, the Report and Order requires ISPs to display, at the point of sale, broadband consumer labels with critical information about their service offerings, including about pricing, introductory rates, data allowances, performance metrics, and the ACP). For each of their current broadband service offerings, ISPs must display at the point of sale a label disclosing the charges and terms for the service and the broadband speeds associated with each plan, along with links to information about the ACP, network management practices, privacy policies, and other educational materials.
128. The Report and Order approves the overall format of the Commission's 2016 voluntary labels. The labels must be provided in a clear and simple-to-read uniform format—much like a nutrition label required on food products—that will enable consumers to easily compare the services of alternative providers. In addition, the information contained in the labels must be provided in a machine-readable format, and the labels must include unique plan identifiers and must be accessible to all consumers, including people with disabilities. The labels are designed to assist consumers specifically during the shopping period—the time when consumers are comparing different service offerings and selecting a provider and plan that best meet their needs. Thus, ISPs must display the labels at the point of sale, both online and through alternate sales channels ( e.g., company retail locations, retail seller locations, or over the phone). On the provider's website, the label must be displayed in close proximity to the advertised service plan that is available to the consumer at their location. In addition, ISPs that offer online account portals to their customers must make each customer's label easily accessible to the customer in such portals. Finally, ISPs must archive labels that have been removed from their websites and alternate sales channels for a period of two years and must provide such labels to the Commission or to an existing customer, upon request. In taking these actions, the Report and Order implements the requirements of the Infrastructure Act and, at the same time, minimizes any compliance burdens for both small and large entities.
B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA
129. In the NPRM, the Commission solicited comments on how to minimize the economic impact of the new rules on small businesses. One commenter specifically addressed the RFA requirements, arguing that “government agencies must consider the effects of their regulatory actions on small entities and mitigate them where possible.” To minimize the burdens and economic impact of the proposed broadband labels on smaller providers, NTCA urges the Commission to exempt small broadband providers from the Commission's formal complaint process. NTCA says that complying with onerous and time-consuming complaint, discovery and hearing processes will seriously disrupt a small provider's ability to serve its customers, maintain its network, and expand to new service areas.
130. Several other commenters argued that smaller entities would face similar challenges in complying with the proposed label requirements given their small staffs and limited resources. They propose certain measures such as an exemption for smaller providers from the label requirements or, in the alternative, granting smaller providers an extended implementation timeframe, e.g., one additional year, to achieve compliance with the label requirements. They assert the additional time will allow smaller providers to compile the information that must be presented in the label; incorporate the information into the label format; post the labels on their websites; and train customer service representatives, sales agents, and other personnel.
131. In addition, some commenters urged the Commission to assist smaller providers by developing and making available to them broadband label templates in the form of “fillable PDFs.” Others argue that the Commission should not require providers to develop and maintain labels that are “machine readable,” asserting that such a requirement will tax the resources of smaller providers with limited in-house technical resources. They also state that the Commission should not require providers to submit broadband labels “via an application programming interface (API)” and should instead provide alternative submission options that are less complicated to implement.
C. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration
132. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.
D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities
133. The Report and Order adopts rules requiring all ISPs to display, at the point of sale, labels that disclose to consumers certain information about their broadband service offerings including pricing, introductory rates, data allowances, and broadband speeds, and include links to other information on their websites about network management practices, privacy policies, the ACP, and other educational materials.
134. To meet the label requirements, ISPs must create a label for each of their stand-alone broadband service offerings in the format described and displayed in the Report and Order—one resembling the format adopted by the FDA for nutrition labels on food products. Most of the required information that ISPs must compile and display (price, performance, speed and latency, and data allowances) should already be included as part of any ISP's advertising materials or readily available to them from the broadband data they maintain internally. In addition, ISPs must take steps to ensure that the information contained in the labels is publicly available via a dedicated URL in a machine-readable format, and that the labels include a unique identification code to assist third parties and researchers in compiling broadband data to help consumers compare service offerings amongst providers.
135. ISPs are required to display the labels at each point of sale. For purposes of displaying the required broadband labels, “point of sale” is defined as the time a consumer begins investigating and comparing broadband service offerings available at their location. Thus, the rules require ISPs to display the labels both online and through alternate sales channels ( e.g., company retail locations, retail seller locations, or over the phone) and to make the labels available to consumers at each point of sale. On the provider's website, providers must display the actual label in close proximity to the associated advertised service plan.
136. The provider must also make the label available at alternate sales channels. This could include directing the consumer to the specific website on which the label appears by, for example, providing internet access in the retail location or giving the customer a card with the printed URL or a QR code, or orally providing information from the label to the consumer over the phone. If the consumer is shopping for broadband service on the phone, the provider must read the label in its entirety to the consumer on the phone. If the consumer does not have internet access at home or elsewhere, the provider must provide a hard copy of the label. The provider shall document each instance when it directs a consumer to a label at an alternate sales channel and retain such documentation for two years. ISPs must also ensure that the required labels are accessible to all consumers, including people with disabilities. In addition, ISPs that offer online account portals to their customers must make each customer's label easily accessible to the customer in such portals.
137. The rules also require ISPs to maintain an archive for a period of two years of all labels in the event consumers file complaints related to the information displayed in the labels or if the Commission or other state/local regulatory authority needs to access the archived labels for other enforcement purposes. This archive must include all labels that are no longer available on the provider's website and alternate sales channels. The archive must also include any information that evidences the accuracy of the labels' content, such as pricing and performance data. Providers are not required to make the archived labels available to the public, but they must provide any label to the Commission or to a current customer upon request, within thirty days.
E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered
138. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
139. The Commission considered feedback from commenters about how to minimize burdens on smaller ISPs when implementing the Infrastructure Act. Some commenters recommended that ISPs be required to aggregate the monthly cost identified on the label with any other discretionary fees and government taxes—creating an “all-in” price. The Commission considered this option and determined that providing an “all-in” cost may be difficult for ISPs because applicable government taxes often vary according to the consumer's geographic location, and equipment rentals and installation charges may also vary. Thus, the Commission rejected an all-in cost requirement, stating that permitting ISPs to display the monthly price without taxes and other fees may lessen their administrative burdens.
140. In addition, the Commission evaluated all of the content displayed on the 2016 voluntary labels and determined that certain information either did not benefit consumers at the point of sale or could be burdensome for providers to include in the labels. The 2016 fixed broadband labels, for instance, required providers to disclose speed, latency and packet loss metrics. In the Report and Order, the Commission determined alternatively to eliminate the requirement to display packet loss measurements.
141. Several commenters supported requiring providers to disclose in the labels specific information related to blocking, throttling, and paid prioritization. Some argued that the network management disclosures in the 2016 labels were inadequate and urged the Commission to add content related to blocking, throttling, and paid prioritization. The Commission concluded alternatively that requiring a link to the broadband service provider's website as a source for more information on its practices, rather than expanding the labels to address network management practices in detail, is the best approach. Similarly, some commenters asserted that the labels should include more detailed information about ISPs' privacy practices than the 2016 labels did. The Commission determined instead that it was appropriate to adopt the 2016 label language regarding privacy and to simply require a link on the label to the service provider's privacy policy.
142. In the Report and Order, the Commission considered whether the labels should be available in languages other than English. Several commenters opposed requiring providers to make labels available in multiple languages, asserting that it would be extremely cumbersome and expensive, particularly for smaller providers. While emphasizing the importance that the labels be accessible to all consumers, the Commission recognized the potential burdens on providers of translating labels into multiple languages at this time. Thus, it required providers to alternatively post the labels on websites and in any printed materials in English, as well as in any other languages in which they market their services.
143. Some commenters asked that the Commission make “fillable” PDF templates of the label available to providers to minimize the burdens on smaller providers in particular. The Commission determined to make label templates available to providers on its website and directed the Consumer and Governmental Affairs Bureau to complete work on the initial website no later than thirty days before the new label requirement becomes effective. Other commenters asked that small providers not be subject to any requirement that the label be machine readable. The record showed that the benefits of requiring that the label content be machine readable can be achieved at a low cost to providers, with no commenters providing cost data to suggest otherwise. Nevertheless, to address such concerns, the Commission determined that allowing providers to use spreadsheets to make the information available in a machine-readable format greatly minimizes any burden that a small provider might have to bear, and will be lessened even further by the fact that the Commission will provide a template of the label. The Commission also determined that the machine-readable requirement should not become effective until one year after OMB completes its review of the new information collection requirements.
144. In addition, the Commission considered whether to require ISPs to display the labels on their customers' monthly bills. It declined to do so, however, noting that the burdens on ISPs of doing so appear to outweigh the benefits to consumers. Instead, the Commission determined to require ISPs to display labels on customers' online account portals, finding that associating a label that is already displayed on the provider's primary advertising web page would not be overly burdensome. The Commission nevertheless determined that in order to allow ISPs sufficient time to make any necessary system changes, the customer online account requirement should not become effective for all providers until one year after OMB completes its review of the new information collection.
145. Finally, the Commission considered whether to exempt smaller providers from the label requirements. While it rejected such an exemption, stating that it was important to ensure that every consumer benefits from the labels, not just those who are served by the largest providers, it did adopt a different implementation period for providers with 100,000 or fewer subscriber lines, which will likely include substantially all small entities. Specifically, the Commission determined that these providers should have a longer time within which to come into compliance with the new label requirements and adopted a one-year implementation period for these providers. The Commission was persuaded that implementing broadband labels may require providers to complete certain tasks such as compiling the information that must be presented in the label and posting labels on their websites. Thus, the Commission concluded that additional time was warranted for these providers that are less likely to have in-house attorneys and compliance departments to assist in preparing their broadband labels and will need to engage outside legal resources to implement several proposed requirements. Finally, one commenter asked that the Commission exempt small broadband providers from the Commission's formal complaint process. The Commission stated that the formal complaint process does not apply in this context given the current classification of broadband internet access service.
List of Subjects in 47 CFR Part 8
- Cable television
- Common carriers
- Communications common carriers
- Reporting and recordkeeping requirements
- Satellites
- Telecommunications
- Telephone
- Radio
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 8 as follows:
PART 8—INTERNET FREEDOM
1. The authority citation for part 8 is revised to read as follows:
Authority: 47 U.S.C. 154, 201(b), 257, 303(r), and 1753.
2. Section 8.1 is amended by adding paragraphs (a)(1) through (7) to read as follows:
(a) * * *
(1) Any person providing broadband internet access service shall create and display an accurate broadband consumer label for each stand-alone broadband internet access service it currently offers for purchase. The label must be prominently displayed, publicly available, and easily accessible to consumers, including consumers with disabilities, at the point of sale with the content and in the format prescribed by the Federal Communications Commission (Commission) in figure 1 to this paragraph (a)(1).
Figure 1 to Paragraph (a)(1)—[Fixed or Mobile] Broadband Consumer Disclosure Label
(2) Broadband internet access service providers shall display the label required under paragraph (a)(1) of this section at each point of sale. “Point of sale” is defined to mean a provider's website and any alternate sales channels through which the provider's broadband internet access service is sold, including a provider-owned retail location, third-party retail location, and over the phone. For labels displayed on provider websites, the label must be displayed in close proximity to the associated advertised service plan. “Point of sale” also means the time a consumer begins investigating and comparing broadband service offerings available to them at their location. “Point of sale” for purposes of the E-Rate and Rural Health Care programs is defined as the time a service provider submits its bid to a program participant. Providers participating in the E-Rate and Rural Health Care programs must provide their labels to program participants when they submit their bids to participants. Broadband internet access service providers that offer online account portals to their customers shall also make each customer's label easily accessible to the customer in such portals.
(3) The content of the label required under paragraph (a)(1) of this section must be displayed on the broadband internet access service provider's website in a machine-readable format. Broadband internet access service providers must provide the information in any label separately in a spreadsheet file format on their websites via a dedicated uniform resource locator (URL) that contains all of their labels. Providers must publicize the URL with the label data in the transparency disclosures required under this paragraph (a).
(4) The label required under paragraph (a)(1) of this section must be provided in English and in any other languages in which the broadband internet access service provider markets its services in the United States.
(5) Broadband internet access service providers shall maintain an archive of all labels required under paragraph (a)(1) of this section for a period of no less than two years from the time the service plan reflected in the label is no longer available for purchase by a new subscriber and the provider has removed the label from its website or alternate sales channels. Providers must provide any archived label to the Commission, upon request, within thirty days. Providers must provide an archived label, upon request and within thirty days, to an existing customer whose service plan is associated with the particular label. A provider is not required to display a label once the associated service plan is no longer offered to new subscribers.
(6) Broadband consumer label requirements and the transparency rule in paragraph (a) of this section are subject to enforcement using the same processes and procedures. The label required under paragraph (a)(1) of this section is not a safe harbor from the transparency rule or any other requirements established by the Commission.
(7) Paragraphs (a)(1) through (6) of this section may contain an information-collection and/or recordkeeping requirement. Compliance with paragraphs (a)(1) through (6) of this section will not be required until this paragraph (a)(7) is removed or contains a compliance date, which will not occur until after the Office of Management and Budget completes review of such requirements pursuant to the Paperwork Reduction Act or until after the Consumer and Governmental Affairs Bureau determines that such review is not required. The compliance date will be one year after the removal or amendment of this paragraph (a)(7) for providers with 100,000 or fewer subscriber lines and six months after the removal or amendment of this paragraph (a)(7) for all other providers, except that the compliance date for paragraph (a)(3) of this section will be one year after the removal or amendment of this paragraph (a)(7) for all providers. The compliance date for the requirement in paragraph (a)(2) of this section to make labels accessible in online account portals will be one year after the removal or amendment of this paragraph (a)(7) for all providers. The Commission directs the Consumer and Governmental Affairs Bureau to announce compliance dates for paragraphs (a)(1) through (6) of this section by subsequent Public Notice and notification in the Federal Register and to cause this section to be revised accordingly.
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[FR Doc. 2022-26854 Filed 12-15-22; 8:45 am]
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