If You Offer Internet Service, Your Speech is Now Highly Regulated by the FCC
In an order released on November 17, 2022, the FCC dictates in detail the specific words that an Internet service provider must use when communicating with its customers. The FCC has adopted new rules requiring specific information (referred to as the broadband consumer label) to be displayed at the point of sale when offering mass-market retail Internet access service by wire or radio. Internet service providers must display unique identifiers for each of their Internet service plans that must consist of their FCC Registration Number followed by 15 alphanumeric characters. A provider's broadband consumer label must include the information on the FCC's label template (see page 6 of the FCC order). Any customization of the label is prohibited.
Smaller providers will have one year to come into compliance with the new rules after Federal Register publication of OMB's approval. A small Internet service provider is one with 100,000 or fewer subscriber lines. Larger providers have six months to display the broadband consumer labels.
The actual label must appear on the providers primary advertising web page that identifies the available Internet service plans. The FCC's order prohibits just an icon or link to the label from a provider's main website. The label must also be easily accessible on the consumer's online account page.
The FCC order requires labels to be accessible to people with disabilities using current accessibility technologies. Labels must also be displayed in English and any other language used by the provider to advertise or market its Internet service.
Internet service providers must retain and archive for 2 years the labels for all Internet service plans that are no longer available for purchase. Data to support the accuracy of the old label, such as speed and latency, must also be retained for 2 years. The archived labels must be provided to existing customers upon request within 30 days.
The information included in the label must also be provided separately in a machine- readable format. The information must be made available in a spreadsheet file format such as .cvs on a provider's website via a dedicate URL that contains all of a provider's labels.
The FCC contends that these label requirements do not burden free speech in violation of the First Amendment. The FCC describes its new rules as disclosure requirements rather than a speech ban that restricts the conveyance of accurate commercial speech. According to the FCC's order, the label requirements are not more extensive than necessary to assist customers in purchasing a broadband Internet access service.
Enterprise service offerings and special access services are not subject to the new label requirements. However, participants in the Connect America Fund, E-rate or Rural Health Care programs must display the broadband consumer labels even though they may define their services as enterprise" services provided to schools, libraries, and health care providers.
The new label requirements do not apply to airlines, private end user networks such as universities and libraries, coffee shops, bookstores, and other premises where patrons access the Internet, so long as the premises operator does not offer a mass-market retail Internet access service.
In addition to the order adopting the new label rules, the FCC also issued a Further Notice of Proposed Rulemaking seeking comments on whether the FCC should impose additional requirements for broadband consumer labels. In that rulemaking proceeding, the FCC will consider whether it should require additional pricing information on labels, more speed and latency metrics, service reliability measurements, cybersecurity practices, mandatory foreign languages, and making the labels interactive. The deadline for filing comments regarding additional label requirements will be 30 days after Federal Register publication.
Need help with your broadband consumer labels or want to file comments to the Further Notice of Proposed Rulemaking? Contact your friendly Fletcher, Heald & Hildreth attorney to get started today!