On January 27, 2022, the Federal Communications Commission ("FCC") adopted a Notice of Proposed Rulemaking ("NPRM") that would require internet service providers ("ISPs") to display labels disclosing certain service information, including prices, introductory rates, data allowances, broadband speeds, and network management practices. Notably, the NPRM proposes to adopt-with some modifications-the labels developed by an advisory committee and published by the Commission in a 2016 Public Notice.
The labels proposed in the NPRM build on work done under the 2015 Open Internet Order during the Obama Administration. The 2015 Open Internet Order required the Consumer Advisory Committee of the FCC to propose a format for consumer broadband labels that would operate as a safe harbor for broadband providers in complying with the "enhanced" transparency requirements of the Order. The FCC adopted a format for the labels in the 2016 Public Notice, but when the FCC rolled back the Obama-era net neutrality regulations in 2017, it eliminated the enhancements to the transparency rule and thus there was little incentive to use the label. However, the Infrastructure Investment and Jobs Act that President Biden signed into law in November 2021 specifically directed the FCC to promulgate regulations requiring the display of broadband consumer labels "as described in" the 2016 Public Notice.
In the NPRM, the FCC proposes adopting the label format provided in the 2016 Public Notice with several modifications, including requirements that ISPs specify whether the offered prices reflect introductory rates, notify consumers of the availability and pricing of bundled services, and include information about enrolling in the FCC's Affordable Connectivity Program. The NPRM also seeks comment on whether ISPs should be required to notify current customers when there are changes to a label, where the labels should be located, the accessibility of the labels, whether the labels should impact or fully satisfy the FCC's existing transparency rule, how the FCC should enforce the requirements, and the timeline for implementation.
The NPRM represents the first action that the FCC has taken related to net neutrality since the start of the Biden Administration. More significant action on net neutrality very likely will continue to wait until there is a Democratic majority on the Commission, which currently has an even number of Democrats and Republicans. Without a Democratic majority, the FCC does not have the necessary support for broader initiatives, such as reinstating the Obama-era net neutrality rules and/or classification of broadband as a regulated "Title II" service.
The deadline for filing comments on the NPRM is March 9, 2022.
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