Industry weighs in on FCC broadband nutrition labels

Back in January, the Federal Communications Commission (FCC) reintroduced a 2016 plan to create broadband nutrition labels – requiring Internet service providers to display easy-to-understand labels that allow consumers to understand their options and comparison shop.

The voluntary broadband labels were approved in a 2016 public notice, but they were then eliminated under former FCC Chairman Ajit Pai who said they "significantly increased the burdens imposed on ISPs without providing countervailing benefits to consumers or the Commission."

Now, however, the labels are back courtesy of the Biden administration's infrastructure law which requires the FCC to adopt regulations for a consumer-friendly broadband label within a year of that law's passing.

Figure 1: "We initiate this proceeding to implement section 60504 of the Infrastructure Act, and propose to require ISPs to display the 2016 labels, with any necessary modifications," wrote the FCC in a January public notice of proposed rulemaking.
(Source: B Christopher/Alamy Stock Photo)

Following a public comment period, various stakeholders have shared input on the FCC's proposed rulemaking for the program – including whether and how the 2016 labels should be updated. Here are some takeaways from the industry's filings.

No grandfathers allowed

Responding to the FCC's inquiry about the scope of the program and how to treat plans "that are not currently available for purchase by consumers," both USTelecom and AT&T argued that grandfathered (or legacy) plans should be excluded.

"The intent of the broadband labels is to enable consumers to comparison shop plans from a provider and its competitors," said USTelecom's Diana Eisner, VP of policy and advocacy, in the trade organization's public comments. "Providing a broadband label for a legacy plan that is no longer being offered will create confusion and frustration for consumers and will not allow them to comparison shop between real offers."

Lawyers for AT&T echoed those sentiments and added: "Moreover, publishing such labels would be burdensome for providers; AT&T alone has hundreds of grandfathered fixed plans and thousands of grandfathered mobile plans, many of which have very few remaining customers."

Incorporating ACP

The FCC also sought comment on whether and how to incorporate the Affordable Connectivity Program (ACP) monthly broadband subsidy into the label system.

The National Digital Inclusion Alliance (NDIA) wrote that the "most important disclosure" is whether a provider is an ACP participant. The organization suggested the FCC create an "ACP Equity Badge" that participating providers can attach to their labels with basic pricing info and a link to an FCC information page.

In USTelecom's filing, the trade organization said the FCC should "not require providers to include information about ACP on every broadband label as the program is not specific to any offer and reference to it on every label would be redundant."

Instead, it suggested the agency require providers to "offer general ACP information and notice on the webpage housing the broadband labels with a link to the provider's ACP webpage."

Similarly, a joint filing from NTCA–The Rural Broadband Association and the Wireless Internet Service Providers Association (WISPA) said, "Providing the raw discounted rate on the label could lead to confusion or incorrect assumptions among consumers who do not qualify for the program."

Normalize latency

Several commenters suggested the FCC adopt a standard definition of latency.

"Latency measures must be defined between two defined points on a network, such as between a user's interface device (e.g., modem), and the ISP's network core, or between the user interface device and the nearest internet exchange point where the ISP exchanges traffic with other networks. Latency data is meaningless without such normalization," wrote Connected Nation's Brent Legg, EVP of government affairs.

In its filing, SpaceX suggested that the FCC "adopt standardized fixed broadband definitions of speed and latency that leverage its latest thinking about these metrics in the context of high-cost universal service recipients' performance obligations."

Doing so "prevents broadband providers from gaming the system by employing varying definitions of speed and latency that overstate network performance," wrote David Goldman director of satellite policy at SpaceX.

Indeed, Goldman went on to take a dig at SpaceX rival Viasat (which has been fighting with SpaceX over RDOF in the FCC's public comments), saying the company "claims to provide broadband plans with download speeds of up to 100 Mbps for its 'Platinum 100' plan" but its small print shows that "for all plans, Viasat throttles customers, based on customer usage and congestion."

For its part, Viasat's filing makes a similar argument for clear definitions, saying "the Commission should consider specifying standard methodologies for the measurement of performance characteristics included in providers' broadband labels."

Without that, it added, "a consumer may not have complete confidence that, for instance, two providers disclosing the same typical speeds used the same measurement approach to arrive at those figures."

In addition to a coherent definition of latency, Connected Nation urged the FCC to require network jitter measurements on labels. "We believe it is time to move beyond tracking bandwidth alone to include measures that define the quality of service being provided," wrote Connected Nation's Legg.

Beware the First Amendment?

AT&T's filing warns the FCC that Section 60504 (the provision in the infrastructure law that mandates broadband labels) "must be interpreted narrowly to mitigate First Amendment concerns" and that it "raises greater First Amendment concerns than the original 2016 labels."

Those concerns – it said – stem from the 2016 labels being voluntary, while providers are now required to submit information in a format determined by the FCC.

"The Commission must tread carefully when considering forcing broadband providers to publish specified information in pre-determined formats that the broadband providers themselves believe to be confusing to customers, or so over-simplified that they have the potential to be misleading," said AT&T. "The First Amendment therefore strongly counsels in favor of interpreting the Commission's authority under Section 60504 narrowly. With respect to these mandatory labels, less will generally be more – and more likely to be constitutional."

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— Nicole Ferraro, site editor, Broadband World News; senior editor, global broadband coverage, Light Reading. Host of "The Divide" on the Light Reading Podcast.

A version of this story first appeared on Broadband World News.