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DA 11-1148
Released: June 30, 2011
FCC ENFORCEMENT BUREAU AND OFFICE OF GENERAL COUNSEL ISSUE ADVISORY
GUIDANCE FOR COMPLIANCE WITH OPEN INTERNET TRANSPARENCY RULE
GN Docket No. 09-191, WC Docket No. 07-52
In this Public Notice, the Enforcement Bureau and Office of General
Counsel (together, the "Bureau") offer initial guidance regarding specific
methods of disclosure that will be considered to comply with the
transparency rule adopted in the Commission's Open Internet Order. This
guidance is intended for broadband providers seeking additional
clarification about disclosure practices that will satisfy the rule when
it becomes effective. We emphasize that the alternatives described here
are examples of approaches to disclosure that would satisfy the
transparency rule; broadband providers may implement alternative
approaches that disclose information sufficient to adequately inform
consumers and relevant third parties. And as noted in the Open Internet
Order, the Commission or the Bureau may provide additional guidance in the
future.
In the Open Internet Order, the Commission concluded that effective
disclosure of broadband providers' network management practices increases
"the likelihood that broadband providers will abide by open Internet
principles," enables the Internet community and the FCC to identify and
address open Internet violations, and correspondingly increases "the
chances that harmful practices will not occur." For example, information
about performance metrics such as broadband speed and latency can help
consumers and others identify situations in which access to a particular
website or application may have been slowed if the speed or latency
experienced in accessing that website or application is consistently and
significantly worse than the disclosed speed or latency for the broadband
service. The Commission also found that disclosure of network management
practices and the performance and commercial terms of broadband services
empowers consumers and promotes competition and investment, further
reducing broadband providers' incentives and ability to engage in harmful
conduct.
To achieve these objectives, the Commission adopted the following
transparency rule:
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 Commission stated that "effective disclosures will likely include"
information concerning "some or all" of the following topics: (1) network
practices, including congestion management, application-specific behavior,
device attachment rules, and security measures; (2) performance
characteristics, including a general description of system performance and
the effects of specialized services, if any, on available capacity; and
(3) commercial terms, including pricing, privacy policies, and redress
options. Rather than providing an exhaustive list of topics that should be
included in disclosures, the Commission concluded that "the best approach
is to allow flexibility in implementation of the transparency rule, while
providing guidance concerning effective disclosure models." "Broadband
providers should examine their network management practices and current
disclosures to determine what additional information, if any, should be
disclosed to comply with the rule."
The Commission indicated that it "may require adherence to a particular
set of best practices in the future," and suggested that it might address
this issue in the ongoing Consumer Information and Disclosure proceeding.
The Commission also noted that it had launched a broadband performance
measurement project designed to measure some of the actual speed and
performance characteristics of broadband service, which "will inform
Commission efforts regarding disclosure."
Pursuant to the Paperwork Reduction Act (PRA), the Commission published a
notice in the Federal Register on February 9, 2011 seeking comment on the
PRA implications of the transparency rule, and in particular on the
Commission's estimate of the burden of the transparency rule on broadband
providers. In response to the Federal Register notice, broadband providers
and broadband provider industry associations expressed concerns arising
from the flexibility provided to broadband providers in complying with the
transparency rule. In the absence of greater clarity regarding expected
disclosures, commenters stated, the transparency rule could be interpreted
to require burdensome disclosures, particularly for small providers that
may not have resources comparable to the largest providers. Other
commenters suggested that it would be appropriate for the Commission to
provide early guidance to clarify disclosure obligations.
To provide further clarity regarding the transparency rule, this Public
Notice offers initial guidance for compliance with certain aspects of the
rule based on the Bureau's understanding of the information available to
broadband providers at this time. While the suggestions below offer ways
broadband providers can satisfy their disclosure obligations, these
particular methods of compliance are not required or exclusive; broadband
providers may comply with the transparency rule in other ways.
This Public Notice offers guidance in five specific areas:
1. Point-of-Sale Disclosures. The Open Internet Order requires broadband
providers to disclose network management practices, performance
characteristics, and commercial terms "at the point of sale." Some
commenters raised concerns that the Order could be interpreted to require
distribution of physical materials at retail outlets and extensive
training of sales employees at those locations and at telephone and
Internet sales centers operated by broadband providers or third parties.
The Commission addressed those concerns in the Order, stating that
"broadband providers must, at a minimum, prominently display or provide
links to disclosures on a publicly available, easily accessible website
that is available to current and prospective end users and edge
providers." The Commission further explained in the Order that it
anticipated that "broadband providers may be able to satisfy the
transparency rule through a single disclosure." Accordingly, we clarify
that the Order does not compel the distribution of disclosure materials in
hard copy or extensive training of sales employees to provide the
disclosures themselves. Broadband providers can comply with the
point-of-sale requirement by, for instance, directing prospective
customers at the point of sale, orally and/or prominently in writing, to a
web address at which the required disclosures are clearly posted and
appropriately updated. The address provided should enable consumers easily
to find the disclosures, rather than, for example, leading to a broadband
provider's general purpose home page from which the disclosures are not
clearly and readily accessible. At brick-and-mortar retail outlets (i.e.,
not telephone or Internet sales centers), broadband providers that rely on
a web page for point-of-sale disclosure should make available equipment,
such as a computer, tablet, or smartphone, through which customers can
access the disclosures.
2. Service Description. The Open Internet Order requires broadband
providers to disclose accurate information regarding network performance
for each broadband service they offer. As noted in the Order, the
Commission has launched a broadband performance measurement project to
accurately measure key performance metrics, including baseline connection
speed and latency. The Commission expects initial results of the project
to be finalized and publicly released before the open Internet rules
become effective. Both those initial results and the methodology developed
through the project can facilitate broadband providers' measurement and
disclosure of the actual performance of their services. Ultimately, we
expect the Commission or the Bureau to provide additional guidance
regarding disclosure of performance characteristics based on outputs from
the broadband performance measurement project and the Consumer Information
and Disclosure proceeding.
A. Fixed Broadband. To satisfy their obligations under the transparency
rule, the 13 fixed broadband providers that chose to participate in the
broadband performance measurement project-which together account for
approximately 86% of all residential fixed broadband connections in the
U.S.-may disclose their results from the project as a sufficient
representation of the actual performance their customers can expect to
experience. For example, for a particular tier of service, a broadband
provider could disclose data from the project showing the mean upload and
download speeds in megabits per second during the "busy hour" between 7:00
p.m. and 11:00 p.m. on weeknights. Similarly, broadband providers could
report mean roundtrip latency during this time period.
Providers that have not participated in the performance measurement
project to date may use the methodology developed through the
project-which will be released along with the project's initial results-to
measure the actual performance of their broadband offerings.
Alternatively, a broadband provider may disclose actual performance based
on internal testing; consumer speed test data; or other data regarding
network performance, including reliable, relevant data from third-party
sources such as the broadband performance measurement project.
B. Mobile Broadband. The Commission has recognized that measuring
performance can be more challenging for mobile broadband than for fixed,
and is in the process of obtaining data regarding mobile broadband
performance that will help facilitate mobile broadband providers'
disclosure of actual performance, as the broadband performance measurement
project data will do for fixed services. Once that data has been reviewed,
we anticipate the Commission or the Bureau providing further guidance
regarding specific methods of disclosing performance information. Until
then, mobile broadband providers that have access to reliable information
on network performance may disclose the results of their own or
third-party testing; many mobile providers routinely receive such
performance data. This disclosure could include mean upload and download
speeds in megabits per second and mean roundtrip latency. We recognize
that some mobile broadband providers, particularly small providers, may
not have or reasonably be able to obtain reliable information on their
network performance metrics such as mean upload and download speeds. Such
a provider that lacks reasonable access to this network performance
information may disclose a Typical Speed Range (TSR) representing the
range of speeds and latency that can be expected by most of their
customers, for each technology/service tier offered, along with a
statement that such information is the best approximation available to the
broadband provider of the actual speeds and latency experienced by its
subscribers. For example, they could disclose that their 3G offerings
typically provide download speeds between X and Y kilobits per second.
We encourage fixed and mobile providers to disclose the source of their
performance measurements and the underlying methodology used to evaluate
performance. We expect fixed and mobile broadband providers to reevaluate
their performance disclosures whenever they know or have reason to believe
that the actual performance of their services has come to differ
materially from the performance reported in their disclosures.
3. Extent of Required Disclosures. Because the Open Internet Order states
that its list of potential disclosure topics "is not necessarily
exhaustive," some broadband providers have expressed concerns that they
could be liable for failing to disclose additional types of information
that they may not be aware are subject to disclosure. We clarify that
disclosure of the information specifically identified in paragraphs 56 and
98 of the Open Internet Order will suffice for compliance with the
transparency rule at this time. As noted in the Open Internet Order, the
Commission may determine in the future that different disclosures by
broadband providers are appropriate at that time, possibly in connection
with the Consumer Information and Disclosure proceeding.
4. Content, Applications, Service, and Device Providers. The transparency
rule requires broadband providers to disclose accurate information
sufficient for "content, application, service, and device providers to
develop, market, and maintain Internet offerings." Commenters have voiced
uncertainty about what broadband providers are required to disclose for
the benefit of these edge providers. We note that although the
transparency rule requires disclosures for the benefit of edge providers
as well as consumers, the Commission expected that "broadband providers
may be able to satisfy the transparency rule through a single disclosure."
Based on the record developed in the Open Internet proceeding, we
anticipate that disclosures sufficient to enable "consumers to make
informed choices regarding use of [broadband] services" will also
generally satisfy the portion of the transparency rule regarding
disclosures to edge providers. We anticipate that broadband providers with
consumer disclosures that include sufficiently detailed information
regarding network management practices to enable a technologically
sophisticated Internet user to understand how such network management
practices work, and how they affect consumers' access to and use of
Internet offerings, will not need to make separate or additional
disclosures for the specific benefit of edge providers. This in no way
alters the obligation of mobile broadband providers to disclose their
certification and approval processes for devices and applications, if any.
5. Security Measures. In response to the statement in the Open Internet
Order that effective disclosures "will likely include" information
concerning "practices used to ensure end-user security or security of the
network," several commenters argued that because broadband providers
employ a host of security measures and constantly update them, keeping
disclosures up to date in this area will be unduly burdensome. We expect
broadband providers to use sound judgment in deciding whether it is
necessary and appropriate to disclose particular security measures. In
making that determination, the touchstone is that providers must disclose
information "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." As that
standard suggests, the Commission is concerned with security measures
likely to affect a consumer's ability to access the content, applications,
services, and devices of his or her choice. Thus, for example, we would
expect broadband providers to disclose if security measures intended to
prevent the spread of viruses, malware, spam, or other threats to
consumers also prevented end users from running a mail server or web
server using their broadband connection. But we would not expect providers
to disclose internal network security measures, such as routing security
practices, that do not directly bear on a consumer's choices.
Issued by: Chief, Enforcement Bureau and General Counsel
* * * *
For further information regarding compliance with the transparency rule,
contact Christopher Killion at 202-418-1711 or ckillion@fcc.gov. Media
inquiries should be directed to Neil Grace at 202-418-0506 or
neil.grace@fcc.gov.
- FCC -
Preserving the Open Internet, Broadband Industry Practices, Report and
Order, 25 FCC Rcd 17905, 17936-41 (2010).
The rules adopted in the Open Internet Order will become effective 60 days
after the Federal Register notice announcing the decision of the Office of
Management and Budget approving the information collection requirements
contained in those rules. See id. at 17989, para. 161.
See id. at 17938, 17941, paras. 56, 59.
Id. at 17940, para. 58.
Id. at 17936, para. 53.
Id.
Id. at 17937, para. 54.
Id. at 17938-39, para. 56.
Id.
Id.
Id. at 17940, para. 58.
Id. at para. 58 n.188; Consumer Information and Disclosure, Notice of
Inquiry, 24 FCC Rcd 11380 (2009).
25 FCC Rcd at 17940, para. 58 n.188; see also Comment Sought on
Residential Fixed Broadband Services Testing and Measurement Solution,
Pleading Cycle Established, Public Notice, 25 FCC Rcd 3836 (2010); Comment
Sought on Measurement of Mobile Broadband Network Performance and
Coverage, Public Notice, 25 FCC Rcd 7069 (2010).
See Paperwork Reduction Act of 1995, Pub. L. 104-13, 109 Stat. 163 (1995),
codified at 44 U.S.C. S: 3501 et seq.
See Notice of Public Information Collection Being Reviewed by the Federal
Communications Commission, Comments Requested, 76 Fed. Reg. 7207 (Feb. 9,
2011). The Commission also sought comment on the PRA implications of the
proposed transparency rule when it issued the Open Internet NPRM. See 74
Fed. Reg. 62638, 62639 (2009).
See, e.g., Letter from Ross Lieberman, Vice President of Government
Affairs, ACA, et al. to Marlene Dortch, Secretary, FCC, GN Docket No.
09-191, WC Docket No. 07-52 at 2 (filed June 8, 2011) (Lieberman Letter);
CTIA Comments at 12-15; NCTA Comments at 5-6.
See Letter from David Sohn, Center for Democracy & Technology, to Marlene
Dortch, Secretary, FCC, GN Docket No. 09-191, WC Docket No. 07-52 at 1
(filed June 3, 2011).
The guidance provided in no way alters broadband providers' obligation to
comply with elements of the transparency rule not discussed herein, or
with the Open Internet Order's other rules.
25 FCC Rcd at 17940, para. 57.
See CTIA Comments at 12; MetroPCS Comments at 8-10; USTA Comments at 5,
10-11.
25 FCC Rcd at 17939-40, para. 57; see also id. at 17940, para. 58 n.186
("[W]e expect that broadband providers will make disclosures in a manner
accessible by people with disabilities.").
Id. at 17940, para. 58.
See USTA Comments at 6; Lieberman Letter at 4. With regard to the form of
website disclosures, we note that the Commission considered Comcast's
disclosure concerning its congestion management practices likely to
satisfy the network practices disclosure requirement, and that this
disclosure provides a useful guide for other disclosures. See 25 FCC Rcd
at 17938, para. 56 n.177; see also Comcast, Network Management Policy,
http://xfinity.comcast.net/terms/network/update/; Comcast, Frequently
Asked Questions About Network Management,
http://customer.comcast.com/Pages/FAQViewer.aspx?seoid=Frequently-Asked-Questions-about-Network-Management.
25 FCC Rcd at 17937, 17939, paras. 54, 56.
Id. at 17940, para. 58 n.188.
See supra n.13.
The participants in the project are AT&T, Cablevision, CenturyLink,
Charter, Comcast, Cox, Frontier, Insight, Mediacom, Qwest, Time Warner
Cable, Verizon, and Windstream. The project has also obtained some
performance measurements for broadband provided by Clear (fixed wireless),
HughesNet (satellite), and WildBlue (satellite) from customers that
voluntarily submitted data.
The 86% figure is a staff calculation based on June 30, 2010 Form 477
data. See Industry Analysis and Technology Division, Wireline Competition
Bureau, Internet Access Services: Status as of June 30, 2010 (March 2011),
available at
http://transition.fcc.gov/Daily_Releases/Daily_Business/2011/db0520/DOC-305296A1.pdf.
Generally, roundtrip latency is the length of time for a signal to be sent
between two defined end points and the time it takes for an
acknowledgement of the receipt of the signal to be received. See, e.g.,
Institute for Telecommunication Sciences, Telecommunications: Glossary of
Telecommunication Terms, Federal Standard 1037C, available at
http://www.its.bldrdoc.gov/fs-1037/ (definition of "round-trip delay
time").
Various software-based broadband performance tests are available as
potential tools for companies to estimate actual broadband performance.
Ookla Inc., host for the speedtest.net broadband performance test, has
information about obtaining test data at
http://www.netindex.com/source-data/. Measurement Lab, the host for the
NDT broadband performance test, has information about obtaining test data
at http://www.measurementlab.net/data.
See Connect America Fund, A National Broadband Plan for Our Future, High
Cost Universal Service Support, Notice of Inquiry and Notice of Proposed
Rulemaking, Appendix C (The Broadband Availability Gap, Omnibus Broadband
Initiative Technical Paper 1), 25 FCC Rcd 6657, 6794 (2010).
In 2010, the Commission issued a public notice seeking comment on
measurement of mobile broadband performance. See Comment Sought on
Measurement of Mobile Broadband Network Performance and Coverage, Public
Notice, CG Docket No. 09-158, CC Docket No. 98-170, WC Docket No. 04-36,
25 FCC Rcd 7069 (2010). In response, several commenters acknowledged the
existence of testing by mobile broadband providers and third parties. See,
e.g., AT&T Comments at 11 ("Mobile broadband network providers often
perform their own testing, and hire independent third parties, like GWS
and Nielsen, to perform testing."); CTIA Comments at 12 ("In addition to
this wealth of resources available from providers themselves,
third-parties also study and report on wireless coverage and service.");
Nielsen Comments at 2 ("Nielsen Telecom's annual testing program provides
an independent view of wireless network performance and coverage across
all major voice and data networks in more than 200 unique markets that are
home to more than 220 million consumers.").
As noted in the Open Internet Order, the Commission will consider industry
standards and best practices in enforcing open Internet rules. See 25 FCC
Rcd at 17988, para. 159; see also id. at 17946, para. 74 (discussing the
importance of conformity with industry best practices and technical
standards).
Id. at 17939, para. 56.
See ACA Comments at 7; CTIA Comments at 10-11, 17-18; ITTA Comments at
4-5; MetroPCS Comments at 4; USTA Comments at 4, 9-10, 16-17.
In paragraph 98 of the Open Internet Order the Commission explained that,
in addition to the generally applicable requirements of the transparency
rule, mobile broadband providers "should follow the guidance the
Commission provided to licensees of the upper 700 MHz C Block spectrum
regarding compliance with their disclosure obligations, particularly
regarding disclosure to third-party application developers and device
manufacturers of criteria and approval procedures (to the extent
applicable). For example, these disclosures include, to the extent
applicable, establishing a transparent and efficient approval process for
third parties, as set forth in Rule 27.16(d)." 25 FCC Rcd at 17959, para.
98.
See id. at 17940, para. 58 & n.188.
Id. at 17937, para. 54.
See ACA Comments at 9; CTIA Comments at 11; MetroPCS Comments at 5; NCTA
Comments at 4-5; USTA Comments at 4, 8. As noted in the Open Internet
Order, the term "edge provider" is used to describe content, application,
service, and device providers because they generally operate at the edge
rather than the core of the network. See 25 FCC Rcd at 17907 n.2.
Id. at 17940, para. 58.
Id. at 17937, para. 54.
See id. at 17941, para. 60 ("A key purpose of the transparency rule is to
enable third-party experts such as independent engineers and consumer
watchdogs to monitor and evaluate network management practices, in order
to surface concerns regarding potential open Internet violations.");
17938, para. 56 n.177 (discussing Comcast's disclosure of congestion
management practices); Comcast, Network Management Policy,
http://xfinity.comcast.net/terms/network/update/; Comcast, Frequently
Asked Questions About Network Management,
http://customer.comcast.com/Pages/FAQViewer.aspx?seoid=Frequently-Asked-Questions-about-Network-
Management; see also 25 FCC Rcd at 17992, Rule S: 8.1 ("The purpose of
this Part is to preserve the Internet as an open platform enabling
consumer choice, freedom of expression, end-user control, competition, and
the freedom to innovate without permission.").
Id. at 17938-39, 17959, paras. 56, 98.
Id. at 17938-39, para. 56.
See CTIA Comments at 15-16; MetroPCS Comments at 4-5; USTA Comments at
12-13; see also Lieberman Letter at 4. CTIA suggests, for example, that
"every time a mobile broadband provider deploys a new technique to
prevent, detect, mitigate and respond to the latest malware, spam, or
other network threat, a process would be triggered to determine whether
this new technique must be disclosed." CTIA Comments at 16.
See 25 FCC Rcd at 17941, para. 59 ("[T]he transparency rule we adopt today
gives broadband providers some flexibility to determine what information
to disclose and how to disclose it.").
Id. at 17937, para. 54; see also id. at 17992, Rule S: 8.1 ("The purpose
of this Part is to preserve the Internet as an open platform enabling
consumer choice, freedom of expression, end-user control, competition, and
the freedom to innovate without permission.").
2
PUBLIC NOTICE
Federal Communications Commission
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