Comments Due: August 5, 2015
Reply Comments Due: September 4, 2015

The FCC’s Consumer and Governmental Affairs Bureau is seeking comment on the “Small Business Exemption from the enhanced transparency requirements adopted in the 2015 Open Internet Order. The exemption is currently in effect until December 15, 2015. The Commission adopted the original transparency rule in 2010, requiring broadband providers to disclose information regarding commercial terms (including pricing, privacy policies, and redress options), performance characteristics (including a general description of system performance, such as speed and latency), and network practices (including congestion management and security measures). The original transparency rule required disclosure of information “sufficient for consumers [and edge providers] to make informed choices” regarding the use of broadband services. The enhanced transparency requirements oblige broadband providers to always disclose the following information:

  • Commercial terms for prices, other fees, and data caps or allowances;
  • Packet loss, broadband performance metrics by geographic area, average performance during peak usage hours over a reasonable period of time;
  • Network practices that are applied to traffic associated with a particular user or group of users, including application-agnostic degradation of service.  The disclosure must include which users or data plans are affected, the triggers that activate use of the practice, the types of traffic that are subject to the practice and the practice’s likely effect on the end user’s experience;
  • A voluntary safe harbor that providers will be able to use to meet the format and nature of the required disclosure to consumers, which “must provide a consumer-focused, standalone disclosure.”1

The Commission temporarily exempted small broadband providers from the enhanced requirements. However, the Commission now seeks comment on whether the enhanced transparency requirements will impose burdens on smaller broadband providers which are sufficient to retain or extend the temporary exemption. Small providers are defined as those with 100,000 or less broadband connections as per the provider’s most recent Form 477, aggregated over all of the provider’s affiliates. At the time the Commission adopted the exemption, the Commission also directed the Consumer and Governmental Affairs Bureau to seek comment on the exemption and adopt an order no later than December 15, 2015, indicating whether it would maintain the exemption and at what level. 

  • Whether a one-time exemption from the rules, in lieu of a permanent exemption, would assist with a “smooth transition” to  full compliance, and if so, what the duration of the proposed one-time exemption should be
  • Whether the 100,000 or fewer broadband connection threshold is appropriate for any extension of the temporary exemption

Comments in response to the Public Notice are due August 5, 2015. Reply comments are due September 4, 2015.

If you have any questions, please contact Doug Bonner, Rebecca Jacobs, or any member of the firm’s Communications Law Group.

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1 2015 Open Internet Order, para. 179.  The Commission declined to mandate the exact format of such a standalone disclosure to satisfy the safe harbor, instead seeking the advice of the Consumer Advisory Committee by October 31, 2015 to recommend a standardized disclosure format, for both fixed and mobile broadband providers, similar to a “nutrition label.”  Id. The CAC’s proposed disclosure format will be subject to review and approval by the Wireline Competition, Wireless and Consumer & Government Affairs Bureaus of the Commission.  Id. at paras. 179-180.