[Federal Register Volume 81, Number 15 (Monday, January 25, 2016)]
[Rules and Regulations]
[Pages 3967-3969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00485]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 8

[GN Docket No. 14-28; DA 15-1425]


Protecting and Promoting the Open Internet

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission, via the Consumer and Governmental Affairs 
Bureau (CGB or Bureau) temporarily extends an exemption for smaller 
broadband Internet access service providers from compliance with 
certain enhancements to the exiting transparency rule that governs the 
content and format of disclosures made by providers. The exemption is 
available to providers with 100,000 or fewer broadband connections as 
per the provider's most recent Form 477,

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aggregated over all of the providers' affiliates. These actions are 
necessary to enable consideration of whether to make the exemption 
permanent after the Commission completes its burden analysis.

DATES: Effective February 24, 2016.

FOR FURTHER INFORMATION CONTACT: Jerusha Burnett, Consumer Policy 
Division, Consumer and Governmental Affairs Bureau, Federal 
Communications Commission, 445 12th Street SW., Washington, DC 20554, 
(202) 418-0526.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Document DA 15-1425, released December 15, 2015 in GN Docket No. 14-28, 
temporarily extending the exemption for smaller providers from enhanced 
transparency requirements established in the Protecting and Promoting 
the Open Internet, GN Docket No. 14-28, Report and Order on Remand, 
Declaratory Ruling, and Order (2015 Open Internet Order), published at 
80 FR 19738, April 13, 2015. The full text of document DA 15-1425 will 
be available for public inspection and copying via ECFS, and during 
regular business hours at the FCC Reference Information Center, Portals 
II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Document 
DA 15-1425 can also be downloaded in Word or Portable Document Format 
(PDF) at: https://www.fcc.gov/document/open-internet-small-business-exemption-extension-order.
    To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an email to [email protected] or call the Consumer and Governmental 
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Final Paperwork Reduction Act of 1995 Analysis

    The Commission currently has an Office and Management and Budget 
(OMB) collection 3060-1158 pending OMB's review and approval of a 
revision containing modified information collection requirements 
adopted in the Commission's 2015 Open Internet Order, published at 80 
FR 19736, April 18, 2015. This collection contains information 
collection requirements for a temporary exemption for smaller broadband 
Internet access service providers imposed by the transparency rule, 
which are subject to the Paperwork Reduction Act (PRA) of 1995. Public 
Law 104-13. However, document DA 15-1425 does not modify the existing 
information collection requirements contained in OMB collection 3060-
1158, and it does not contain new or modified information collection 
requirements subject to the PRA. In addition, therefore, it does not 
contain any new or modified information collection burden for small 
business concerns with fewer than 25 employees, pursuant to the Small 
Business Paperwork Relief Act of 2002. Public Law 107-198. See also 44 
U.S.C. 3506(c)(4).

Synopsis

Introduction

    1. In document DA 15-1425, CGB finds that at this time it cannot 
fully evaluate the impact of removing the temporary exemption for 
smaller broadband Internet access service providers from the 
enhancements to the Open Internet transparency rule previously adopted 
by the Commission in the 2015 Open Internet Order. The information 
collection and disclosure requirements imposed by the transparency rule 
are subject to the PRA. The Commission is proceeding through the PRA 
process, which involves estimating the burden of complying with the 
transparency rule enhancements for providers of all sizes and obtaining 
approval from OMB. To avoid acting prematurely in advance of that 
approval, CGB therefore extends the temporary exemption for smaller 
providers until December 15, 2016. At that time, the Bureau expects 
that the PRA process will be complete and that the full Commission will 
be able to consider whether and, if so, how best to extend the 
temporary exemption from the enhanced transparency requirements with 
the benefit of more complete information.

Background

    2. In the 2015 Open Internet Order, the Commission adopted certain 
enhancements to the existing transparency rule that governs the content 
and format of disclosures made by providers of broadband Internet 
access service. These enhanced transparency requirements built upon the 
original transparency rule the Commission adopted in 2010 to provide 
critical information to end-user consumers, edge providers, and the 
Internet community regarding commercial terms, performance 
characteristics, and network practices. In the 2015 Open Internet 
Order, the Commission concluded that the enhanced requirements adopted 
were modest in nature, yet critical to consumers, and, indeed, that 
some may have already been required by the 2010 rule.
    3. The Commission temporarily exempted from the enhanced 
transparency requirements those providers with 100,000 or fewer 
broadband subscribers, as per their most recent Form 477, aggregated 
over all of the providers' affiliates. At the same time, the Commission 
directed CGB to seek comment on both the appropriateness of the 
exemption as well as the threshold, and to adopt an order announcing 
whether it is maintaining an exemption and at what level by no later 
than December 15, 2015.
    4. On June 22, 2015, the Bureau released a Public Notice, published 
at 80 FR 38424, July 15, 2015, seeking comment on whether to maintain 
the temporary exemption and, if so, the appropriate threshold for 
whether a provider qualified for such an exemption. The Public Notice 
also clarified that the threshold should be measured in terms of 
broadband connections, rather than in terms of subscribers or 
subscriber lines. For this reason, the Public Notice made clear that 
the current exemption from the enhanced transparency requirements 
applied to providers with 100,000 or fewer broadband connections.

Smaller Provider Exemption

    5. CGB hereby extends the temporary exemption for smaller providers 
from the enhanced transparency requirements until December 15, 2016. At 
that time, the Bureau expects that the PRA process will be complete and 
that the full Commission will be able to consider whether and, if so, 
how best to address the exemption from the enhanced transparency 
requirements for small providers with the benefit of more complete 
information.
    6. The Bureau cannot agree with those commenters that claim that 
the enhanced transparency requirements offer no tangible benefit to 
customers of smaller providers. As the Commission stated in the 2015 
Open Internet Order, the enhanced transparency requirements, while 
modest, are critical to enable end-user consumers to make informed 
choices about broadband Internet access services by providing them with 
timely information tailored to their needs. Similarly, the Commission 
stated that such requirements provide edge providers with the 
information necessary to develop new content, applications, services, 
and devices that promote the virtuous cycle of investment and 
innovation. The Commission noted in the 2015 Open Internet Order that 
it received numerous complaints from consumers after the 2010 rules 
took effect, suggesting that

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broadband providers were not providing the information that end users 
and edge providers need to receive and the Commission continues to 
receive such complaints. Commenters critical of the enhanced 
transparency requirements offer no evidence that Internet customers do 
not have the same complaints today that they raised in the period 
following the 2010 rules, nor do they present evidence that customers 
of smaller providers are less in need of these essential informational 
disclosures than are customers of larger providers. It is a matter of 
historical record that Open Internet issues do not necessarily concern 
the actions of only large broadband providers. Furthermore, the Bureau 
agrees with the commenter who noted that rural subscribers deserve the 
same benefits as all other subscribers.
    7. In determining whether and, if so, how to best to address the 
exemption, the Bureau must balance the benefit of the transparency rule 
enhancements to consumers against the impact on small providers of 
removing the exemption. Until the PRA process is complete, however, the 
Bureau finds that we cannot fully evaluate this impact. Despite the 
Commission's finding that the enhancements adopted in the 2015 Open 
Internet Order are modest, a few commenters cite specific requirements 
as being particularly burdensome for smaller providers. The Commission 
is currently evaluating comments in response to the initial burden 
estimates and is preparing final burden estimates. In addition, in 
response to requests for additional clarity regarding the enhanced 
compliance obligations, the Bureau anticipates that the Commission may 
release a public notice in the near future, similar to the guidance 
provided in 2011 on interpreting the transparency requirements. Such 
guidance may provide greater certainty as to the enhanced disclosure 
obligations and alleviate commenter concerns regarding potential 
liability for inadvertent non-compliance.
    8. The 2015 Open Internet Order directed the Bureau to seek comment 
on the smaller provider exemption and to adopt an order announcing 
whether it is maintaining an exemption and at what level by no later 
than December 15, 2015. To avoid making a premature determination prior 
to PRA approval, the Bureau therefore extends the exemption until 
December 15, 2016. At that time, the Bureau expects that the PRA 
process will be complete and that the full Commission will be able to 
consider whether and, if so, how best, to address the exemption from 
the enhanced transparency requirements for small providers with the 
benefit of more complete information.

Smaller Provider Threshold

    9. The Commission set the exemption threshold at 100,000 or fewer 
broadband connections as per providers' most recent Form 477, 
aggregated over all of the providers' affiliates. The Bureau agrees 
with those commenters who support the use of this threshold. As the 
Commission noted, this threshold is analogous to that which was used in 
the 2013 Rural Call Completion Order, published at 78 FR 76218, 
December 17, 2013, and advocated for by parties who sought such an 
exemption in this proceeding. Although some parties advocate that the 
Bureau should broaden this exemption to include entities that serve 
500,000 or fewer broadband connections, the Bureau is concerned from 
our internal review of the relevant Form 477 data that this change 
would substantially increase the number of consumers who would be 
temporarily excluded from receiving the information that the Commission 
has deemed essential for them to make informed choices about broadband 
services. Absent a more compelling reason than a desire to protect such 
providers from burdens that the Commission has concluded are modest in 
nature, the Bureau believes the Commission's threshold of 100,000 or 
fewer broadband connections as measured by their most recent Form 477, 
aggregated over all affiliates remains a reasonable basis to delineate 
which providers are likely to be most affected by the burden of 
complying with the enhanced disclosure requirements. Furthermore, the 
Bureau notes that providers with between 100,000 and 500,000 
connections were not covered by the exemption established by the 
Commission in the 2015 Open Internet Order and, presumably, have 
already begun the process of coming into compliance. The Bureau does 
not agree with the Small Business Administration's (SBA) Office of 
Advocacy and CTIA that the Commission has adopted a size standard that 
differs from the SBA's size standard and thus requires SBA approval for 
regulatory enforcement purposes. The 100,000 connection threshold is 
not a business size. Rather it exempts businesses (both larger and 
smaller) based on an analysis of the relative costs of requiring 
compliance. By CGB's action here, the Bureau extends the exemption 
already set by the Commission in the 2015 Open Internet Order, using a 
threshold which itself is analogous to a threshold the Commission has 
used in the past.

Form 477

    10. In the Public Notice, the Bureau sought comment on whether 
smaller providers that fail to file a Form 477 should be ineligible for 
the exemption. One commenter notes that not all providers are required 
to submit Form 477 and suggests that these providers be allowed to 
offer an alternative reporting mechanism to avail themselves of the 
exemption. The Bureau agrees, in this limited circumstance, that 
providers that are not required to file a Form 477 can avail themselves 
of the exemption by demonstrating that they served 100,000 or fewer 
broadband connections aggregated over all the providers' affiliates at 
the relevant time should any complaint arise. In all other instances, 
however, the exemption will be tied to the information provided on Form 
477. In the 2015 Open Internet Order, the Commission expressly linked 
the exemption to the number of connections reported via the Form 477. 
The Bureau finds no basis in the record to revisit that decision 
herein. As a result, providers obligated to file Form 477 that do not 
fulfill their obligation to file such information in a timely manner 
will be ineligible for the exemption, even if they serve 100,000 or 
fewer broadband connections aggregated over all of the providers' 
affiliates.

Congressional Review Act

    The Commission will not send a copy of DA 15-1425 pursuant to the 
Congressional Review Act, because the Commission adopted no rules 
therein. See 5 U.S.C. 801(a)(1)(A). Rather than adopting rules, the 
Commission exercised its statutory authority to extend an exemption for 
smaller broadband Internet access service providers from compliance 
with certain enhancements to the exiting transparency rule that governs 
the content and format of disclosures made by providers by Order until 
December 15, 2016.

Ordering Clause

    Pursuant to sections 4(i) and 4(j) of the Communications Act of 
1934, as amended, 47 U.S.C. 154(i), (j), and Sec.  8.3 of the 
Commission's rules, 47 CFR 8.3, and the authority delegated in 
Sec. Sec.  0.141 and 0.361 of the Commission's rules, 47 CFR 0.141, 
0.361, and in 2015 Open Internet Order, that document DA 15-1425 is 
adopted.

Federal Communications Commission.
Mark Stone,
Deputy Chief, Consumer and Governmental Affairs Bureau.
[FR Doc. 2016-00485 Filed 1-22-16; 8:45 am]
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