Net Neutrality Not Entirely Dead – FCC Transparency Rule Effective June 11 – Are you ready?

When the Federal Communications Commission (FCC) voted to dismantle the Obama-era net neutrality regulatory framework, the agency nevertheless recommitted to enforcing its existing transparency rule, albeit a modified version. First imposed in 2010, the transparency rule requires fixed and mobile internet service providers (ISPs) to disclose their operating practices and commercial terms.

Explaining that the transparency rule “increases the likelihood that harmful practices will not occur in the first place,” the FCC has taken the position that companies will think twice about the policies they put in place as long as they will be required to publish their policies to the public.

With all other net neutrality rules virtually gone, the transparency rule has suddenly become the FCC’s only net neutrality enforcement mechanism. To avoid scrutiny or an enforcement action, ISPs should confirm that their current disclosures comply with the modified transparency rule.

So what does the transparency rule require?

The modified transparency rule requires ISPs to disclose network management practices, performance, and commercial terms of their broadband internet access services. ISPs are required to post the disclosures on their publicly accessible websites in a format that is easily accessible, including for those with disabilities, or to submit to the FCC for posting on the FCC’s website.

The following is a summary of the elements that must be included in the disclosures:

Network Management Practices: disclose the following practices:

  • Blocking – blocking lawful content, applications, or services. Describe what is blocked.
  • Throttling – impairing or degrading access to lawful internet traffic. Describe what is being throttled.
  • Affiliated prioritization – favoring traffic to the benefit of an affiliate. Identify the affiliate.
  • Paid prioritization – favoring certain traffic over other traffic, in exchange for payment.
  • Congestion management – describe congestion management practices. Describe the types of traffic subject to congestion management; the purposes served; the practices’ effects on end users’ experience; criteria used in congestion management, such as indicators of congestion that trigger a practice, including any usage limits triggering the practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards.
  • Application-specific behavior – describe whether and why the ISP blocks or rate-controls specific protocols or protocol ports, modifies-protocol fields, or otherwise inhibits or favors certain applications.
  • Device attachment rules – describe any restrictions on connecting devices to a network. Also disclose any approval procedures for connecting devices.
  • Security – describe any practices used to ensure end-user security.

Performance characteristics: disclose the following:

  • Service description – describe the service, including the technology involved, expected and actual access speed and latency, and suitability of the service for real-time applications.
  • Impact of non-broadband internet access service data services – list non-broadband internet access service data services, and describe any impact of these services on the performance of, or capacity available for, broadband internet access service.

Commercial terms: disclose the following:

  • Price – state the monthly service price, usage-based fees, and fees for early termination or additional network services.
  • Privacy policies – disclose privacy practices. Specifically, state if any network management practices entail inspection of network traffic, and explain how data gathered would be used.
  • Redress options – state the process for resolving complaints and questions from consumers, entrepreneurs, and other small businesses.

The modified transparency rule eliminates the “nutrition facts” label format that the agency promoted under the leadership of former Chairman Tom Wheeler. The FCC also eliminated performance metric discloses such as packet loss, geographically-specific disclosures, and disclosure of performance at peak usage times.

If you have any questions about the Restore Internet Freedom Order or the modified transparency rule, please contact Alex Schneider at (703) 714-1328 or ais@commlawgroup.com.

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