One of the important changes in the FCC’s recent order to reinstate Title II regulations is the transparency rules that have been put back into place.

Transparency rules were first required in the 2010 Open Internet Order. That Order required ISPs to “publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.”

The FCC implemented transparency requirements for large ISPs in 2011 and, in 2014, and reminded large ISPs that any transparency disclosures made to the public must be consistent with any advertising about their products and services. The FCC was unhappy with how large ISPs were implementing the rules and tightened the rules in the 2015 Open Internet Order which also first implemented net neutrality. That Order required the following:

• ISPs were required to disclose prices that include the full monthly service charge during any promotional period, the full monthly charge after the expiration of a promotional rate, any one-time or recurring fees or surcharges, and any data caps and allowances.
• ISPs must disclose all performance characteristics, including packet loss, for each broadband service offered.
• All performance-related disclosures should reasonably reflect the performance a consumer could expect in the geographic area in which the consumer would be purchasing service.
• ISPs were required to make additional disclosures pertaining to congestion management, application-specific behavior, device attachment rules, and security.
• The FCC also required ISPs to directly notify end users “if their individual use of a network will trigger a network practice, based on their demand prior to a period of congestion that is likely to have a significant impact on the end user’s use of service.” Said more simply, ISPs had to notify customers if they were approaching a data cap or other event that would trigger additional charges.
• The FCC also adopted a voluntary broadband label.

When the AJIT Pai FCC killed Title II regulation, the transparency requirements were one of the many regulations that were eliminated. Many ISPs continued making some transparency disclosures to customers, but the spirit of being fully open with customers largely slipped away over time.

In 2021, Congress reinstated a part of the original transparency rules by requiring that ISPs use broadband nutrition-style label. Large ISPs with more than 100,000 customers implemented the labels in April, and other ISPs must comply by this fall.

In the new Order, the FCC adopted new language to define ISP transparency requirements, “A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.” The Order has a lengthy discussion and description of what should be reported, starting with paragraph 543.

The new transparency reporting requirements only apply to ISPs with more than 100,000 customers. The FCC expects these disclosures to be easily findable by the public and close to any place where an ISP advertises prices and services. The FCC is not changing any disclosures needed for the broadband labels and will address those separately if they want to make changes. I recently wrote a review of the early broadband labels from some of the largest ISPs, and many of them were clearly lacking in terms of being able to find them on an ISP website or in terms of being clear about the performance of broadband products. These new rules are far more demanding in terms of transparency, and it will be interesting to see how big ISPs handle them.

Smaller ISPs ought to consider voluntarily following the same reporting requirements if they think being open gives them any competitive advantage.