Regulatory Alert – One Many Seemed to Have Missed

Network_neutrality_poster_symbolThe original net neutrality ruling went into effect in October, 2011. This was an order from the FCC titled In the Matter of Preserving the Open Internet, GN Docket No. 09-191, Report and Order, FCC 10-201, known at the time as the Open Internet Order. Of course, the heart of that order was challenged in court by Verizon which led to the recent net neutrality order earlier this month.

However, there were parts of that original order that were not challenged in court and that are still in effect. There is one important requirement that everybody should notice having to do with disclosure for Internet data products. The disclosure requirements apply to all ISPs, both wireline and wireless. The gist of the requirements are that ISPs should “disclose the network management practices, performance characteristics, and terms and conditions of their broadband service.”

In the Order, the FCC included a long list of the types of information that would satisfy the disclosure requirement. ISPs should be reporting the following facts to their customers:

Network Practices    

  • Congestion Management. Descriptions of congestion management practices; types of traffic subject to practices; purposes served by practices; practices’ effects on end users’ experience; criteria used in practices, such as indicators of congestion that trigger a practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards, where appropriate.
  • Application-Specific Behavior. Whether and why the provider blocks or rate-controls specific protocols or protocol ports, modifies protocol fields in ways not prescribed by the protocol standard, or otherwise inhibits or favors certain applications or classes of applications.
  • Device Attachment Rules. Any restrictions on the types of devices and any approval procedures for devices to connect to the network.
  • Security. Practices used to ensure end-user security or security of the network

Performance Characteristics

  • Service Description. A general description of the service, including the service technology, expected and actual access speed and latency, and the suitability of the service for real-time applications. (Emphasis mine.)
  • Impact of Specialized Services. What specialized services, if any, are offered to end users, and whether and how any specialized services may affect the last-mile capacity available for, and the performance of, broadband Internet access service.

Commercial Terms

  • Pricing. Monthly prices, usage-based fees, and fees for early termination or additional network services.
  • Privacy Policies. Whether network management practices entail inspection of network traffic, and whether traffic information is stored, provided to third parties, or used by the carrier for non-network management purposes.
  • Redress Options. Practices for resolving end-user and edge provider complaints and questions.

I know that many ISPs took note of this requirement at the time of the original order. But most assumed that when the courts vacated the net neutrality provisions of the order that the entire order was vacated.

If you have a good network, these are things that you want to be telling your customers. And if you think you have a better network than your competitors then you also want to make sure that your competitors are disclosing this same kind of information. The most interesting thing on the list of requirements is a disclosure of actual speeds, as opposed to advertised speeds. I know that this is a really big deal in rural markets where the large companies often advertise their urban products that are not actually available in smaller markets with older technology.

If you have not put together this sort of disclosure, you really need to do so. It’s somewhat surprising that no customer has ever complained to the FCC about ISPs not making these disclosures. I would guess that everybody got so confused by the court cases that the requirement got lost in the shuffle. I recall years ago that the same sort of thing happened with the original access charge order in 1984, where some sections were challenged and overturned while others went into immediate effect. In any event, if you haven’t made these disclosures you should do so, and you also ought to look to make sure that your competitors have done the same.

4 thoughts on “Regulatory Alert – One Many Seemed to Have Missed

  1. Queries for the legal profession:
    1. Who can bring suit against a service provider for misrepresenting actual speeds? Consumers (individual? class action)? Regulatory authorities (FCC, state commissions)?
    2. Given all the actual speed test data collected by FCC, state broadband offices, and private sector (aside from carrier in-house data gathering) there is plenty of actual data to dispute carrier pronouncement of “actual” speeds.
    3. Congressional oversight anyone?

    • Under normal FCC rules anybody could bring a complaint against an ISP – a customer or a competitor. There could certainly be complaints made that a company was not complying with this rule by posting the necessary facts to their customers. I could also envision a second set of complaints made saying that such information was incorrect.

      With that said, the FCC has the authority to investigate or not investigate such complaints. I have never seen a case yet where they investigated this particular issue, but that doesn’t mean they haven’t gotten complaints.

  2. Doug your articles such as this is why you’re on my must read list every day.

    This part is fascinating:

    Privacy Policies. Whether network management practices entail inspection of network traffic, and whether traffic information is stored, provided to third parties, or used by the carrier for non-network management purposes.

    With regards to a national security letter (NSL)NSLs may contain a gag order—preventing the recipient of an NSL from disclosing that the FBI had requested the information—only if the Director of the FBI (or his designee) authorizes the nondisclosure requirement. The Director may authorize a nondisclosure requirement only after certifying “that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person.”[3] Even then, the recipient of the NSL can still challenge the nondisclosure requirement in federal court.[4]

    Federal courts have issued contradictory rulings on the constitutionality of the nondisclosure requirement. The requirement was initially ruled to be unconstitutional as an infringement of free speech in the Doe v. Gonzales case, but that decision was later overturned in 2008 by the Second Circuit Court of Appeals after it held the USA PATRIOT Improvement and Reauthorization Act gave the recipient of an NSL that included a nondisclosure provision the right to challenge the nondisclosure requirement in federal court. In March 2013, district court judge Susan Illston of Federal District Court in San Francisco struck down the law, writing that the prohibition on disclosure of receipt of an NSL made the entire statute “impermissibly overbroad” under the First Amendment. Judge Illston then stayed her ruling pending the outcome of In re: National Security Letter, Under Seal v. Holder, a consolidated appeal by the United States Department of Justice in the United States Court of Appeals for the Ninth Circuit.[5][6]

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