FCC Orders ISPs to Publish Broadband "Nutrition Labels"

Update: OMB approved the FCC's broadband disclosure rules on October 10, 2023, meaning that most of the rules will become applicable to ISPs with more than 100,000 subscriber lines on April 10, 2024, and to all other ISPs on October 10, 2024. A revised version of our November 11, 2022 advisory is below.

At the Congressional deadline imposed by the Infrastructure Investment and Jobs Act (IIJA), the Federal Communications Commission (FCC) has required fixed and mobile internet service providers (ISPs) to publish broadband service "nutrition labels" in a standardized format to inform customers of the pricing, performance, and other details of each of their currently available standalone broadband offerings sold to mass market residential and small business customers. These new obligations significantly overlap (and will apply in addition to) the FCC's existing network transparency rules.

Providers with fewer than 100,000 broadband subscribers (aggregated over all the provider's affiliates) will have to comply by October 10, 2024, and larger providers will have to comply by April 10, 2024. ISPs should collect the necessary information well in advance of these deadlines because additional time will be needed to prepare to comply with the FCC's rules to make the labels machine readable and accessible for people with disabilities.

Rules for Content of Labels

The new broadband label is designed similarly to nutrition information labels required to be printed on food products, and ISPs cannot deviate from the prescribed format. The labels must include:

• The base monthly price and a list of each non-tax additional one-time or recurring fee, including any early termination fee
  • whether the offered price is a temporary promotional rate and, if so, the length or expiration date of the promotion and the price the consumer must pay at its end
  • whether the service requires a term commitment and, if so, a link to the terms of service (interestingly, a link to service terms is not otherwise provided for in the label)
  • links to information about options to receive discounts by bundling broadband with other services (separate labels for bundled plans are not required)
• State that the base monthly price includes government taxes if provider is incorporating taxes into the monthly price
• The amount of data included in the plan and the charges for exceeding that allowance, including increment of additional data and additional charges if data allowance within monthly price is exceeded for each respective tiered data plan
• Link to the ISP's website describing data allowance information under "Data Included with Monthly Price" section of the label so that "Data Included" appears as a hyperlink to more information about data allowance options 
• Typical download and upload speeds and latency figures for each plan, but ISPs retain flexibility in choosing how, when, and how often to collect this data
• Links to the ISP's privacy policy and its network management disclosure required by the FCC's existing network transparency rule
• Information about the FCC's Affordable Connectivity Program (ACP) and an indication of whether the ISP participates
• Customer support contact information
• A link to the FCC Consumer Resource Center
• A unique identifier for each plan using an FCC-prescribed formula

A copy of the FCC's prescribed format is at the bottom of this advisory. ISPs are required to update labels each time an available plan is changed, but the FCC did not require ISPs to undertake the burden of notifying existing customers of such changes because "the labels are primarily intended to educate consumers at the time of purchase." ISPs must archive all labels and retain evidence sufficient to support the accuracy of the labels' content (such as speed test data) for two years beyond the retirement of an available offering.

To satisfy the recordkeeping compliance requirement, ISPs must establish procedures for distributing broadband labels through alternative sales channels, retain training materials and documentation related to business practices for two years, and provide information to the FCC upon request within 30 days.

Rules for Presentation of Labels

The labels must be prominently displayed in close proximity to an associated plan advertisement at every "point of sale" including websites, retail stores, and in phone calls. Online, the labels do not need to be displayed prior to a visitor specifying their service location so that only plans available to them would be made visible. When accepting telephone orders, ISPs can send the label to the caller by text or email in real time; other options include the agent reading the entire label or pointing the caller to a direct link, but companies electing the latter option must retain documentation for two years of every instance in which they refer a consumer to an alternate sales channel to access the label.

One year after OMB approval, ISPs that offer customers an online portal must make a standalone broadband customer's label available on the portal. That said, the FCC did not require ISPs to create labels for bundled plans or plans that were no longer offered as of the effective date of these new rules, so it appears that a label need not be available on the portal to those customers.

The original order required E-rate and Rural Healthcare participants to provide labels with their bids, but the FCC has since clarified that labels are only required for mass market Internet access and not enterprise and special access services.

Labels Must Be Machine Readable and Accessible

ISPs must support machine-readability of all English versions of its labels by providing the information separately in a spreadsheet file format (such as .csv) that is available on its website via a dedicated URL that is linked in its network management disclosure.

The FCC required that labels be accessible to people with disabilities and ordered ISPs to follow the Americans with Disabilities Act and associated Department of Justice guidance, 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." The FCC also strongly encouraged ISPs to comply with the Web Content Accessibility Guidelines (WCAG). 

Possible Additional Rules Ahead

Regulated companies know that a new regulation is often only the beginning. While other FCC regulation of broadband remains subject to legal challenge, the core tenets of these new labeling rules are less vulnerable because they were authorized and directed by Congress in the IIJA. The initial labeling rules were adopted unanimously by an evenly divided bipartisan FCC, but there is an increased chance next year of a Democratic majority at the FCC as a result of the Democrats' retention of Senate control, and those odds will increase if the Democratic candidate wins the Georgia runoff to secure a Senate majority. The FCC has already issued a request for comment on proposed additional rules related to more comprehensive pricing information, bundled plans, label accessibility (including mandatory compliance with certain WCAG 2.1 standards), performance characteristics, service reliability, cybersecurity, network management and privacy issues, the availability of labels in multiple languages, and whether the labels should be interactive or otherwise formatted differently so the information contained in them is clearer and conveyed more effectively. Comments will be due 30 days after publication of the FCC's order in the Federal Register, which is expected soon.

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Companies should promptly begin to plan their compliance strategy, given the substantial effort that may be needed to implement the new rules. ISPs should also make sure that their network management transparency disclosures are up-to-date given the increased scrutiny that is likely in the coming months as the labeling rules become effective. DWT will be assisting many clients and would be happy to discuss.

The new FCC format for standalone mass market broadband labels is as follows: