[Federal Register Volume 88, Number 179 (Monday, September 18, 2023)]
[Rules and Regulations]
[Pages 63853-63861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20115]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 8
[CG Docket No. 22-2; FCC 23-68; FR ID 170837]
Empowering Broadband Consumers Through Transparency
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) addresses three petitions requesting that the Commission
clarify and/or reconsider certain of its broadband consumer label
requirements. Specifically, we affirm our determinations that providers
must itemize monthly discretionary fees on the label and state how much
data is provided with the service plan, as outlined by the label
template. We also clarify that E-Rate and Rural Health Care (RHC)
Program service providers are not required to include a broadband label
for enterprise and special access services provided through those
programs. In addition, we revise the Commission's requirement to
document each instance when a provider directs a consumer to a label at
an alternative sales channel and to retain such documentation for two
years. And we make clear that providers that opt to include government
taxes in their monthly base price may state on the label that
government taxes are included. Our actions preserve consumer access to
clear, easy-to-understand, and accurate information about the cost for
broadband services and will empower consumers to choose services that
best meet their needs and match their budgets.
DATES:
Effective date: September 18, 2023.
Compliance date: FCC will announce compliance dates for the
amendments to 47 CFR 8.1(a)(1) and (2) and (b) by publication of a
document in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Erica H. McMahon,
[email protected] or (202) 418-0346, of the Consumer and
Governmental Affairs Bureau, Consumer Policy Division. For information
regarding the PRA information collection requirements contained in the
PRA, contact Cathy Williams, Office of Managing Director, at (202) 418-
2918, or [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration, FCC 23-68, in CG Docket No. 22-2, adopted on August
25, 2023 and released on August 29, 2023, which amends the Commission's
broadband consumer label requirements. The full text of this document
is available online at https://docs.fcc.gov/public/attachments/FCC-23-68A1.pdf. To request this document in accessible formats for people
with disabilities (e.g., Braille, large print, electronic files, audio
format) or to request reasonable accommodations (e.g., accessible
format documents, sign language interpreters, CART), send an email to
[email protected] or call the FCC's Consumer and Governmental Affairs
Bureau at (202) 418-0530 (voice).
Final Paperwork Reduction Act of 1995 Analysis
This document may contain new or modified information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. All such new or modified information collection
requirements will be submitted to the Office of Management and Budget
(OMB) for review under section 3507(d) of the PRA. OMB, the general
public, and other Federal agencies will be invited to comment on any
new or modified information collection requirements contained in this
proceeding.
In addition, we note that pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we
previously sought specific comment on how the Commission might further
reduce the information collection burden for small business concerns
with fewer than 25
[[Page 63854]]
employees, and we received no comment. In this present document, we
have assessed the effects of permitting providers to establish the
business practices and processes it will follow in distributing the
label through alternative sales channels in lieu of documenting each
instance they direct consumers to the label and to note on the label
that government taxes are included in the monthly price, and find that
there are no additional burdens for small businesses with fewer than 25
employees.
Congressional Review Act
The Commission sent a copy of document FCC 23-68 to Congress and
the Government Accountability Office pursuant to the Congressional
Review Act, 5 U.S.C. 801(a)(1)(A).
Synopsis
1. On reconsideration of the Empowering Broadband Consumers Through
Transparency Report and Order, CG Docket No. 22-2, Report and Order,
published at 87 FR 76959 (Dec. 16, 2022) (Broadband Label Order), we
amend the Commission's broadband consumer label rules to address three
petitions requesting that the Commission clarify and/or reconsider
certain label requirements.
A. Identifying Additional Monthly Provider Fees on Labels
2. We affirm that broadband internet access service providers (ISPs
or providers) must itemize the fees they add to base monthly prices,
including fees related to government programs they choose to ``pass
through'' to consumers, such as fees related to universal service or
regulatory fees. We thus affirm that consumers should know both the
total cost of service and what goes into that cost to both budget and
comparison shop between plans and providers. Clear itemization of all
fees--including those related to regulatory programs--is essential to
our goal of empowering consumers to make good purchase decisions.
3. We therefore reject ACA Connects--America's Communications
Association (ACA Connects) et al.'s request that providers simply state
on the label that additional fees may apply and that these fees may
vary depending on location. We also reject their alternative proposal
that providers identify ``generally the maximum dollar figure that
could be passed through to the consumer per month, rather than
requiring providers to itemize each and every fee.'' Neither would
accomplish the label goal of empowering good consumer decisions because
they leave consumers unable to reliably predict the cost of particular
plans for purposes of comparison shopping. Providing specific fee
amounts also accords with the approach reflected in the 2016 Public
Notice (Consumer and Governmental Affairs, Wireline Competition, and
Wireless Telecommunications Bureaus Approve Open internet Broadband
Consumer Labels, GN Docket No. 14-28, Public Notice, 31 FCC Rcd 3358
(CGB/WCB/WTB 2016)), that Congress directed the Commission to consider
in adopting the label, and we are not persuaded to depart from that
approach in this regard.
4. We also disagree that clear disclosure of these fees ``has the
potential to cause significant confusion for consumers and add
unnecessary complexity for providers'' due to the ``huge variety and
quantity of fees on broadband providers.'' Providers must itemize the
fees on consumer bills, and we see no reason why consumers cannot
assess the fees at the point-of-sale any less than they can when they
receive a bill. Providers are free, of course, to not pass these fees
through to consumers to differentiate their pricing and simplify their
label display if they believe it will make their service more
attractive to consumers and ensure that consumers are not surprised by
unexpected charges.
5. Further, we are not persuaded that it will be burdensome for
ISPs to itemize on the label those fees they opt to pass along to
consumers above the monthly price, particularly since providers
acknowledge being able to describe such fees to a consumer over the
phone and on a consumer's bill once the consumer subscribes to service.
We also find that any such burdens are far outweighed by the benefits
to consumers when they are shopping for service. And, ISPs could
alternatively roll such discretionary fees into the base monthly price,
thereby eliminating the need to itemize them on the label.
6. Moreover, we are not persuaded that a provider will be forced to
list on the label ``potentially hundreds of fees for all jurisdictions
in its footprint,'' when only a subset of fees listed would actually
apply to an individual customer. We do agree, however, that such a
practice would ``make the labels very lengthy and unwieldy, diminishing
their utility to consumers and undermining their purpose.'' We,
therefore, reiterate that labels must be accurate based on the
consumer's location. Identifying fees that do not apply to a consumer
in a particular geographic location would effectively render comparison
shopping impossible--a primary purpose of the label. And burying the
fees that do apply on a lengthy list of those that do not risks
displaying a label that is simply inaccurate. Thus, we find that
listing fees on the label that are irrelevant to a particular consumer
shopping for broadband service is inconsistent with the goals of the
Infrastructure Act.
7. Finally, we disagree, for the reasons above, that identifying
the maximum out-of-pocket fees a prospective customer may be
responsible for if they subscribe to the service ``gives the customer
critical information about the service they are considering in a much
more efficient and effective manner than attempting to itemize fees on
a jurisdiction-specific basis.'' We believe that identifying a maximum
dollar figure that a customer would pay in additional provider fees per
month does not sufficiently disclose to consumers what they will be
charged for and how those fees compare to another provider's service
offerings.
8. We also emphasize, however, that if the provider does not impose
additional discretionary fees on top of the base monthly price, but
instead incorporates them into the monthly price, the provider can
state ``None'' on the label template.
B. Describing Data Allowances on Labels
9. We affirm that providers should keep their descriptions of any
data allowances simple on the label and should only describe data
allowance details in their more complete service descriptions in their
advertising materials and on websites. Our conclusion supports a main
goal of the label, to require providers to simply, clearly, and
consistently describe their services to enable consumers to comparison
shop.
10. We therefore deny CTIA--The Wireless Association's (CTIA)
request that wireless providers be able to use multiple lines of data
allowance descriptions on the label. CTIA states that wireless
providers offer consumers data allowance options that differ from those
offered by wireline providers and that such data allowance options may
vary between handsets and hotspots. We agree that consumers may want to
see these details before purchase, but believe consumers are best
served by a high-level description of data allowances on the label, and
that allowing providers to clutter the label with detail about those
allowances would undermine its simplicity and utility.
11. Our conclusion is consistent with the Broadband Label Order,
where we
[[Page 63855]]
required providers to identify the amount of data included with the
monthly price in the label template. We explained that providers must
disclose any charges or reductions in service for any data used in
excess of the amount included in the plan. We also concluded that
providers must identify the increment of additional data, e.g., ``each
additional 50GB,'' if applicable, and disclose any additional charges
once the consumer exceeds the monthly data allowance. We clarify here
that the increment of additional data and the additional charges should
be associated with the data tier of the data cap on the label. We
further stated that limits on data usage are critical pieces of
information for consumers, along with any additional charges the
provider may assess once a consumer exceeds such a cap. But we
emphasized that it is important to keep the label information as simple
as possible for consumers and to require providers to comply by
including links to their websites for more detailed information about
data allowances.
12. Finally, we disagree with commenters that suggest that wireless
providers will have to modify or otherwise limit their competitive
service offerings to fit the label framework. Instead, we reiterate
that, if providers wish to provide more detailed information about
their data allowances, including different allowances for handsets and
hotspots, they may do so through links to their websites. We also
conclude that the link must be included in the ``Data Included with
Monthly Price'' section of the label such that ``Data Included'' would
appear as a hyperlink to more information on the provider's website
regarding its data allowance options.
C. Labels for E-Rate and Rural Health Care (RHC) Programs
13. We grant the Cincinnati Bell Telephone Company LLC Joint
Petition and affirm our determination in the Broadband Label Order that
``enterprise service offerings or special access services are not
`mass-market retail services,' and therefore, not covered by our label
requirement.'' As explained in the Broadband Label Order, the
Infrastructure Act requires the display of labels for ``broadband
internet access service plans.'' Broadband internet access service is
currently defined in Sec. 8.1(b) of our rules as ``a mass-market
retail service by wire or radio that provides the capability to
transmit data to and receive data from all or substantially all
internet endpoints, including any capabilities that are incidental to
and enable the operation of the communications service, but excluding
dial-up internet access service.'' We confirmed in the Broadband Label
Order that ``mass-market retail services'' do not include enterprise
service offerings or special access services, which are typically
offered to larger organizations through customized or individually
negotiated arrangements, and that such services are not covered by the
label disclosure requirements.
14. Based on the petition and commenters' filings, we recognize
that footnote 36 of the Broadband Label Order, which stated that ``we
require E-Rate and RHC providers to provide a label along with any
competitive bids submitted pursuant to the E-Rate or RHC competitive
bidding processes, whether or not such provider defines their offered
service as an `enterprise' service,'' may have resulted in some
confusion. We agree that, to the extent that broadband label
requirements generally exclude enterprise/special access service
offerings, it makes most sense in this context to take a uniform
approach, including with respect to services in the E-Rate and RHC
programs. As Petitioners point out, paragraph 18 of the Broadband Label
Order stated that ``[t]he Infrastructure Act expressly defines
`broadband internet access service' by reference to the definition in
section 8.1(b) of our rules, and the Commission previously had
interpreted that rule to include E-Rate and RHC services.'' We
reconsider the implications of that language in this context, making
clear the uniform treatment of enterprise/special access service
offerings for purposes of our broadband label requirements.
15. Thus, we clarify that footnote 36 does not contradict our
determination regarding enterprise service offerings or require
broadband labels for all broadband services in the E-Rate and RHC
programs. Rather, we emphasize that, regardless of how the provider
names or defines its offering, the manner in which the service is
offered is dispositive of whether the labeling requirements apply. We
therefore affirm here that the enterprise/special access ``exemption''
discussed in the Broadband Label Order typically applies when the
service offering is customized for the beneficiary through individually
negotiated agreements. While we clarify that service offerings to large
customers (or other entities) that are not mass-market retail services
are not covered by the disclosure requirements here, we do not do so
for all the reasons petitioners and commenters raise. For example, we
are not persuaded that it would be overly burdensome for wholesalers
and resellers to create labels for their larger customers or that the
labels would be confusing for the customers themselves.
16. We also reiterate, however, that the label requirements
continue to apply to mass-market broadband services offered in the E-
Rate and RHC programs and agree with commenters that ``such disclosures
would especially benefit the smaller and more rural schools, libraries
and rural health care providers that often purchase standard `off-the-
shelf' internet access service.'' We see no reason why the E-Rate and
RHC bidding processes means that such consumers would not benefit from
the label. The definition in Sec. 8.1(b) of the Commission's rules
includes ISPs participating in the E-Rate and RHC programs and, thus,
they must provide labels to prospective customers during the
competitive bidding process, during which time customers define the
services that they need and providers put forward bids.
D. Documenting Interactions With Consumers at Alternate Sales Channels
17. In response to the ACA Connects Joint Petition, we reconsider
the requirement that a provider must document each instance when it
directs a consumer to a label at an alternative sales channel (e.g.,
retail stores, kiosks, and over the phone) and retain such
documentation for two years. In doing so, we grant ACA Connects'
request and clarify in accordance with such request that the
requirement will be deemed satisfied if: (1) the provider establishes
the business practices and processes it will follow in distributing the
label through alternative sales channels; (2) retains training
materials and related business practice documentation for two years;
and (3) provides such information to the Commission upon request,
within 30 days. Providers may also comply with the requirement as
described in the Broadband Label Order instead (i.e., that they
document each instance when a consumer is provided a label at an
alternative sales channel and retain such documentation for a period of
two years). No commenter opposed Petitioners' request.
18. We agree with petitioners that this clarification will avoid
unnecessary burdens and costs on providers that may risk diverting
resources to otherwise assist consumers with making broadband purchases
at alternative sales channels. We share their concerns that creating an
additional system by which customer-facing employees are required to
record the details of when and how they share the label in every
customer interaction may impose significant costs
[[Page 63856]]
on providers. We are persuaded by petitioners that providers deal with
millions of customers and prospective customers by phone, in retail
locations, and at ``pop-up'' sales outlets such as fairs or
exhibitions, and that it may be challenging for providers to capture
and retain such documentation when consumers are provided with access
to the labels at each and every point of sale.
19. We believe that permitting providers to alternatively establish
business practices and training materials to ensure labels are
distributed consistently and accurately in retail stores and other
sales channels will sufficiently protect consumers. It is also
consistent with our online point-of-sale requirements, whereby
providers need not document each time a consumer views a label on their
websites; they must instead archive all labels after they are removed
from their websites and maintain such archive for at least two years
after the service plan is no longer offered to new customers. As with
archived labels, which must be provided to the Commission, upon
request, within 30 days, we also find that, should the Commission
request a provider's training materials and business practice
documentation for alternate sales channels, ISPs must provide such
information within 30 days. As a result, we amend Sec. 8.1(a)(2) of
the Commission's rules to clarify that the requirement to document
interactions with consumers at alternate sales channels will be deemed
satisfied if, instead, the provider: (1) establishes the business
practices and processes it will follow in distributing the label
through alternative sales channels; (2) retains training materials and
related business practice documentation for two years; and (3) provides
such information to the Commission upon request, within 30 days.
E. Identifying Government Taxes on Labels
20. We grant CTIA's request to clarify that wireless providers have
the flexibility to state ``taxes included'' or add similar language to
the label template when the provider has chosen to include taxes as
part of its base price. CTIA contends that some wireless providers have
chosen to build taxes into the monthly prices that they advertise. No
party opposed this request.
21. We agree with CTIA that the labels should accommodate tax-
included pricing in keeping with the fundamental purpose of providing
consumers with clear and accurate information, and that this was the
Broadband Label Order's intent. We believe our clarification will
benefit consumers by helping them understand the total price for a
provider's service at the point of sale. And, unlike the discretionary
provider fees we address above, providers must assess a specific amount
of taxes on consumers; thus, consumers generally are not comparison
shopping based on such taxes and how they are identified on the label.
We therefore agree that providers may modify the label template to
accommodate this practice. Specifically, they may include a statement
on the label that government taxes are ``included'' in the monthly rate
or some similar language in place of the statement that the amount of
government taxes ``varies by location.''
22. We also agree with CTIA that ``[s]tating that `taxes will
apply' or that they `vary by location' where [taxes] have already been
factored into the quoted prices would not be accurate and would confuse
consumers, not help them, which is a result the Commission surely did
not intend.'' We therefore make clear that providers may only avail
themselves of our clarification when they have included all taxes in
their monthly base price and may not rely on general statements that
taxes may apply if such taxes are not included in the base price.
I. Supplemental Final Regulatory Flexibility Analysis
23. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Empowering Broadband Consumers Through
Transparency, Notice of Proposed Rulemaking, CG Docket No. 22-2, 87 FR
6827 (Feb. 7, 2022) (Broadband Label NPRM). The Commission sought
written public comment on the proposals in the Broadband Label NPRM,
including comment on the IRFA. The Commission subsequently incorporated
a Final Regulatory Flexibility Analysis (FRFA) in the Broadband Label
Order. This Supplemental Final Regulatory Flexibility Analysis
(Supplemental FRFA) incorporates by reference the FRFA in the Broadband
Label Order and reflects changes to the Commission's rules arising from
actions taken in the Order on Reconsideration in response to three
Petitions for Reconsideration of the Broadband Label Order filed by ACA
Connects et al., Cincinnati Bell et al., and CTIA and conforms to the
RFA.
A. Need for, and Objectives of, the Order on Reconsideration
24. The Order on Reconsideration addresses issues resulting from
the Commission's efforts to implement the Infrastructure Investment and
Jobs Act (Infrastructure Act) which directs the Commission ``[n]ot
later than 1 year after the date of enactment of th[e] Act, to
promulgate regulations to require the display of broadband consumer
labels, as described in the Public Notice of the Commission issued on
April 4, 2016 (DA 16-357), to disclose to consumers information
regarding broadband internet access service plans.'' In response to the
Infrastructure Act, the Commission adopted the Broadband Label Order,
requiring broadband labels so that consumers have access to clear,
easy-to-understand, and accurate information about broadband services
that encourages competition, innovation, low prices, and high-quality
services. The information broadband internet service providers (ISPs)
are required to include in the labels empowers consumers to choose
services that best meet their needs and match their budgets and ensures
that they are not surprised by unexpected charges or service quality
that falls short of their expectations. The Order on Reconsideration
grants some of petitioners' requests and denies other requests to
ensure that the labels the Commission adopted remain a simple and clear
means to disclose information about broadband services and to ensure
consumers have the information they need to make educated decisions
about purchasing broadband internet access service. The Order on
Reconsideration therefore affirms some of the Commission's
determinations in the Broadband Label Order and reconsiders some
others, so the labels do not overwhelm consumers with too much
information or overburden providers.
25. Specifically, the Commission grants the Cincinnati Bell Joint
Petition and affirms the determination in the Broadband Label Order
that ``enterprise service offerings or special access services are not
`mass-market retail services,' and therefore, not covered by our label
requirement.'' The Order on Reconsideration clarifies that footnote 36
of the Broadband Label Order, which stated that the Commission requires
``E-Rate and RHC providers to provide a label along with any
competitive bids submitted pursuant to the E-Rate or RHC competitive
bidding processes, whether or not such provider defines their offered
service as an `enterprise' service,'' was not intended to contradict
the Commission's determination regarding enterprise service offerings
or to require broadband labels for all broadband services in the E-Rate
and RHC programs. Rather, the Commission
[[Page 63857]]
emphasizes in the Order on Reconsideration that regardless of how the
provider names or defines its offering, the manner in which the service
is offered is dispositive of whether the labeling requirements apply.
26. The Commission also reconsiders the requirement that a provider
must document each instance when it directs a consumer to a label at an
alternative sales channel (e.g., retail stores, kiosks, and over the
phone) and retain such documentation for two years. In doing so, the
Commission grants ACA Connects et al.'s request and clarifies that the
requirement will be satisfied if the provider instead: (1) establishes
the business practices and processes it will follow in distributing the
label through alternative sales channels; (2) retains training
materials and related business practice documentation for two years;
and (3) provides such information to the Commission upon request,
within thirty days. The Commission agrees with petitioners that this
clarification will avoid unnecessary burdens and costs on providers
that may risk diverting resources to otherwise assist consumers with
making broadband purchases at alternative sales channels.
27. Additionally, in the Order on Reconsideration the Commission
clarifies that wireless providers have the flexibility to make clear on
the labels whether government taxes will be added to the monthly base
price by adding ``taxes included'' or similar language as appropriate
to the label template. The Commission agrees that some providers
include government taxes in their monthly base price and that doing so
could benefit consumers in helping them understand the total price for
a provider's service at the point of sale. Therefore we determined that
providers may modify the label template to accommodate this practice.
28. The Order on Reconsideration declines, however, to reconsider
the requirement that providers identify and list on the label any
additional fees that they charge consumers each month on top of the
monthly base price. As stated in the Broadband Label Order, the
Commission believes requiring that the labels clearly itemize any
additional discretionary fees and state that additional government
taxes will apply to each plan will provide consumers with a more
complete understanding of the total cost for broadband service.
Further, the requirement will allow consumers to more meaningfully
compare providers' rates and service packages, and to make more
informed decisions when purchasing broadband services. The Commission
explains that providers must list fees such as monthly charges
associated with regulatory programs and fees for the rental or leasing
of modem and other network connection equipment.
29. The Order on Reconsideration also denies CTIA's request to
clarify that wireless providers have the flexibility to describe their
data allowances on the label in ways that may be inconsistent with the
adopted label template. The Commission continues to believe that
consumers will be best served by simple labels that are comparable
across providers. Permitting wireless providers to independently
describe data allowances in various ways may hinder comparison shopping
and may lead to an unwieldy or complicated label.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA and FRFA
30. In the Broadband Label Order, the Commission solicited comments
on how to minimize the economic impact of the new rules on small
businesses. The FRFA addressed the concerns of commenters who argued
that smaller entities would face challenges in complying with the
proposed label requirements given their small staffs and limited
resources. The Cincinnati Bell Joint Petition, ACA Connects Joint
Petition, and the CTIA Petition addressed in the Order of
Reconsideration, and associated comments, did not raise any concerns
with the FRFA.
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
31. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments.
32. The Chief Counsel did not file any comments in response to the
rules adopted in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
33. The RFA directs the Commission to provide a description of and,
where feasible, an estimate of the number of small entities that will
be affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' small organization,'' and ``small government
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA.
34. As noted above, the Commission incorporated a FRFA into the
Broadband Label Order. In that analysis, the Commission described in
detail the various small business entities that may be affected by the
final rules. The Order on Reconsideration amends the final rules
adopted in the Broadband Label Order affecting broadband internet
access service providers. Accordingly, in this Supplemental FRFA, we
hereby incorporate by reference the descriptions and estimates of the
number of small entities that might be significantly affected by the
Order on Reconsideration from the Regulatory Flexibility Analysis in
the Broadband Label Order.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
35. In the Order on Reconsideration, the Commission modifies rules
adopted in the Broadband Label Order to reconsider the requirement that
a provider must document each instance when it directs a consumer to a
label at an alternative sales channel (e.g., retail stores, kiosks, and
over the phone) and retain such documentation for two years. In doing
so, the Commission clarifies that the requirement will be deemed
satisfied if instead: (1) the provider establishes the business
practices and processes it will follow in distributing the label
through alternative sales channels; (2) retains training materials and
related business practice documentation for two years; and (3) provides
such information to the Commission upon request, within thirty days.
36. The Commission does not have sufficient information on the
record to determine whether small entities will be required to hire
professionals to comply with its decisions to or to quantify the cost
of compliance for small entities. The Commission, however, anticipates
the approaches it has taken to implement the requirements will have
minimal or de minimis cost implications and should significantly reduce
compliance requirements for small entities that may have smaller staff
and fewer resources. As the Commission emphasizes in the Order on
Reconsideration, the clarification will avoid unnecessary burdens and
costs on providers that may risk diverting
[[Page 63858]]
resources to otherwise assist consumers with making broadband purchases
at alternative sales channels. The Commission agrees that requiring
providers to create an additional system by which customer-facing
employees are required to record the details of when and how they share
the label in every customer interaction may impose significant costs on
providers.
F. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
37. The RFA requires an agency to provide ``a description of the
steps the agency has taken to minimize the significant economic impact
on small entities . . . including a statement of the factual, policy,
and legal reasons for selecting the alternative adopted in the final
rule and why each one of the other significant alternatives to the rule
considered by the agency which affect the impact on small entities was
rejected.''
38. The Commission considered feedback in response to the
Cincinnati Bell Joint Petition, ACA Connects Joint Petition, and CTIA
Petition and evaluated it with the goal of giving broadband providers
some flexibility in how they document their employees' interactions
with consumers in alternate sales channels and how they ensure the
broadband labels are displayed for consumers. Instead of documenting
each instance when a consumer is provided a label at an alternative
sales channel in the original rule, the Commission believes requiring
providers to develop business practices and training materials for
their employees and to retain and make those documents available to the
Commission upon request within thirty days is an alternative that will
minimize the impact on small entities and continue to protect the
interests of consumers for whom the label provides critical information
about broadband services. This should significantly minimize any
compliance costs and burdens on small entities that are subject to the
label requirements.
39. The Commission considered the Petitioners' request but declined
to reconsider the requirement that providers identify and list on the
label any additional fees that they charge consumers each month on top
of the monthly base price. The Commission was not persuaded that it
will be burdensome for providers to itemize on the label those fees
that they opt to pass along to consumers above the monthly price,
particularly since providers acknowledge being able to describe such
fees to a consumer over the phone and on a consumer's bill once he/she
subscribes to service. Further, the Commission found that any such
burdens are far outweighed by the benefits to consumers.
II. Ordering Clauses
40. It is ordered, pursuant to sections 4(i), 4(j), 13, 201(b),
254, 257, 301, 303, 316, and 332 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), 163, 201(b), 254, 257, 301, 303,
316, 332, section 60504 of the Infrastructure Investment and Jobs Act,
Public Law 117-58, 135 Stat. 429 (2021), and section 904 of the
Consolidated Appropriations Act, 2021, Public Law 116-260, 134 Stat.
1182 (2020), as amended, that the Order on Reconsideration is adopted,
and that part 8 of the Commission's rules, 47 CFR part 8, is amended as
set forth below.
41. It is further ordered that the Order on Reconsideration shall
be effective upon publication in the Federal Register. Compliance with
the amendments to Sec. 8.1(a)(1) of the Commission's rules, 47 CFR
8.1(a)(1), which may contain new or modified information collection
requirements, will not be required until the later of: (i) the
compliance dates for the amendments to Sec. 8.1(a)(1) effected in FCC
22-86, to be announced by the Consumer and Governmental Affairs Bureau,
which will be one year after OMB completes its review of requirements
the Consumer and Governmental Affairs Bureau has determined are subject
to the Paperwork Reduction Act for providers with 100,000 or fewer
subscribers and six months after OMB completes its review of the
requirements the Consumer and Governmental Affairs Bureau has
determined are subject to the Paperwork Reduction Act for all other
providers; or (ii) completion of OMB review of any information
collection requirements in the amendments to Sec. 8.1(a)(1) in the
Order on Reconsideration that the Consumer and Governmental Affairs
Bureau determines is required under the Paperwork Reduction Act.
Compliance with the amendments to Sec. 8.1(a)(2) of the Commission's
rules, 47 CFR 8.1(a)(2), which may contain new or modified information
collection requirements, will not be required until the later of: (i)
the compliance dates for the amendments to Sec. 8.1(a)(2) (other than
the requirement to make labels accessible in online account portals)
effected in FCC 22-86, to be announced by the Consumer and Governmental
Affairs Bureau, which will be one year after OMB completes its review
of the requirements the Consumer and Governmental Affairs Bureau has
determined are subject to the Paperwork Reduction Act for providers
with 100,000 or fewer subscribers and six months after OMB completes
its review of the requirements the Consumer and Governmental Affairs
Bureau has determined are subject to the Paperwork Reduction Act for
all other providers; or (ii) completion of OMB review of any
information collection requirements in the amendments to Sec.
8.1(a)(2) in the Order on Reconsideration that the Consumer and
Governmental Affairs Bureau determines is required under the Paperwork
Reduction Act. The Commission directs the Consumer and Governmental
Affairs Bureau to announce the compliance dates for Sec. 8.1(a)(1) and
(2) by subsequent Public Notice and to cause Sec. 8.1(a)(1) and (2) to
be revised accordingly.
42. It is further ordered that, pursuant to 47 CFR 1.4(b)(1), the
period for filing petitions for reconsideration or petitions for
judicial review of any aspect of the Order on Reconsideration will
commence on the date that a summary of the Order on Reconsideration is
published in the Federal Register.
43. It is further ordered that the Petitions for Reconsideration
filed by ACA Connects et al., Cincinnati Bell et al., and CTIA in CG
Docket No. 22-2 on January 17, 2023, are granted in part and otherwise
denied.
44. It is further ordered that the Commission's Office of the
Managing Director, Reference Information Center, shall send a copy of
the Order on Reconsideration, including the Supplemental Final
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
45. It is further ordered that the Office of the Managing Director,
Performance Evaluation and Records Management, shall send a copy of the
Order on Reconsideration in a report to be sent to Congress and to the
Governmental Accountability Office pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 8
Cable television, Common carriers, Communications common carriers,
Reporting and recordkeeping requirements, Satellites,
Telecommunications, Telephone, Radio.
[[Page 63859]]
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 8 as follows:
PART 8--INTERNET FREEDOM
0
1. The authority citation for part 8 continues to read as follows:
Authority: 47 U.S.C. 154, 201(b), 257, 303(r), and 1753.
0
2. Amend Sec. 8.1 by revising paragraphs (a)(1) and (2) and (b) to
read as follows:
Sec. 8.1 Transparency.
(a) * * *
(1) Any person providing broadband internet access service shall
create and display an accurate broadband consumer label for each stand-
alone broadband internet access service it currently offers for
purchase. The label must be prominently displayed, publicly available,
and easily accessible to consumers, including consumers with
disabilities, at the point of sale with the content and in the format
prescribed by the Commission in ``[Fixed or Mobile] Broadband Consumer
Disclosure,'' in figure 1 to this paragraph (a)(1).
Figure 1 to Paragraph (a)(1)--[Fixed or Mobile] Broadband Consumer
Disclosure Label
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[[Page 63860]]
[GRAPHIC] [TIFF OMITTED] TR18SE23.198
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(2) Broadband internet access service providers shall display the
label required under paragraph (a)(1) of this section at each point of
sale. Point of
[[Page 63861]]
sale is defined to mean a provider's website and any alternate sales
channels through which the provider's broadband internet access service
is sold, including a provider-owned retail location, third-party retail
location, and over the phone. For labels displayed on provider
websites, the label must be displayed in close proximity to the
associated advertised service plan. Point of sale also means the time a
consumer begins investigating and comparing broadband service offerings
available to them at their location. For alternate sales channels,
providers must document each instance when it directs a consumer to a
label and retain such documentation for two years. This requirement
will be deemed satisfied if, instead, the provider: establishes the
business practices and processes it will follow in distributing the
label through alternative sales channels; retains training materials
and related business practice documentation for two years; and provides
such information to the Commission upon request, within thirty days.
Point of sale for purposes of the E-Rate and Rural Health Care programs
is defined as the time a service provider submits its bid to a program
participant. Providers participating in the E-Rate and Rural Health
Care programs must provide their labels to program participants when
they submit their bids to participants. Broadband internet access
service providers that offer online account portals to their customers
shall also make each customer's label easily accessible to the customer
in such portals.
* * * * *
(b) Broadband internet access service is a mass-market retail
service by wire or radio that provides the capability to transmit data
to and receive data from all or substantially all internet endpoints,
including any capabilities that are incidental to and enable the
operation of the communications service, but excluding dial-up internet
access service. This term also encompasses any service that the
Commission finds to be providing a functional equivalent of the service
described in the previous sentence or that is used to evade the
protections set forth in this part. For purposes of paragraphs (a)(1)
through (6) of this section, ``mass-market'' services exclude service
offerings customized for the customer through individually negotiated
agreements even when the services are supported by federal universal
service support.
* * * * *
[FR Doc. 2023-20115 Filed 9-15-23; 8:45 am]
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