The FCC recently issued a Notice of Proposed Rulemaking (NPRM) in CG Docket No. 22-2 that asks questions related to the requirement that ISPs provide broadband labels. This new requirement was created by the Investment Infrastructure Investment and Jobs Act. The Act requires that ISPs must display broadband consumer labels and disclose information to consumers about broadband service plans.
The FCC has taken the directive from Congress and turned it into a proposed set of regulations. ISPs and consumers will have a short 30-day window to file comments on the FCC’s suggested rules. Note that for most NPRMs, the final rules largely follow the proposed rules unless the industry makes a compelling case in comments that sway’s the FCC’s thinking.
Following are a few key aspects of the proposed new regulations:
- This would apply seemingly to all ISPs – those that deliver broadband through wired or wireless connections. I assume that wireless includes satellite ISPs.
- The disclosures of broadband information to customers would be summarized in a broadband label similar to ones used for food products. The FCC contemplated labels in 2016 as part of the order that required net neutrality, but when net neutrality was killed, the label requirement was also killed. The FCC is proposing using the same labels that were created in 2016.
- The labels include a detailed description of the broadband product. ISPs must report broadband speeds. ISPs must report prices, and if a customer has a promotional price they must disclose when that price will expire and the regular price that will be charged. ISPs have to include information on data caps or any other restrictions on broadband usage. ISPs also must disclose network management practices and disclose latency and jitter.
The NPRM asks how the FCC will be able to judge the accuracy of labels. To me, this is the key question in the docket, and there is no easy answer. Many ISPs are not going to want to tell the truth about their products since the labels allow for easy side-by-side comparison between competitors. Probably an even more important question is how the FCC can enforce accuracy and how the agency might discipline ISPs that won’t disclose accurate labels. Food manufacturers that lie on the label can be forced from the market, but it’s not that easy to discipline ISPs, except perhaps with monetary damages. Remember that for now, this FCC has little direct authority over ISPs. The FCC will be in charge of these labels, but the agency doesn’t regulate much else related to broadband.
If done accurately, the labels should allow a consumer to quickly identify the difference between two ISPs. This has to scare any ISP competing against a fiber network. The fiber network will show symmetrical speeds, lower latency, and likely pricing with no gotchas. I have to think that cable companies, DSL providers, and some WISPs do not want these labels.
There are a lot of practical concerns about the labels. How does an ISP report on a technology that doesn’t deliver the same broadband speeds and quality everywhere in a market? DSL speeds vary from customer to customer, and even a next-door neighbor can have a drastically different DSL experience. Will a big telco that is still reporting rural DSL speeds of 25/3 Mbps come clean with customers on the actual expected speed?
Most people probably don’t realize it, but the speeds delivered by many cable companies can also differ significantly from neighborhood to neighborhood. In most cities, we find some neighborhoods where a cable company has a clean network that nails the desired speeds and latency. But just blocks away might be a neighborhood with network problems that the cable company has not addressed where speeds are far lower than expected. Are cable companies going to reveal this to customers in the neighborhoods with poor performance? I’ll be shocked if they do.
Fixed wireless broadband also can deliver a wide range of customer experiences. A customer close to the tower with a perfect line-of-sight will get the best speeds, while a host of issues like distance and impediments in the environment can slow down speeds for other customers. Will a WISP that is serving customers past the recommended range of the radios really come clean with a potential customer about how lousy the broadband will be?
If the FCC implements this rule without some way to police it, the big ISPs will continue to tell customers the story they want them to hear instead of the truth. But it sounds impossible for FCC to monitor the whole country to see if ISPs are reporting the truth. The FCC might consider some sort of customer feedback process like they are planning with the FCC maps. But I can’t see the FCC getting bogged down in dealing with hundreds of thousands or even millions of complaints about the labels.
We also can’t forget that the ISP is not always the reason for a poor broadband experience. There are millions of customers that insist on using the cheap WiFi router they bought a decade ago that is killing the broadband speeds inside the house. The FCC is never going to get involved deeply enough to know if an ISP or the customer is at fault.
The labels sound like a good idea, and if ISPs are even only partially truthful, the labels will highlight the difference between competitors. But I can’t imagine any set of requirements that will suddenly force a bad actor ISP to tell the unvarnished truth.