On May 19, the FCC’s Chief Technologist, Office of General Counsel, and Enforcement Bureau (“Bureaus”) released new guidance addressing implementation of the enhanced transparency disclosure requirements required by the 2015 Open Internet Order.  The Guidance addresses many of the questions that had been left unanswered by the initial release of the rules as their effective date draws closer.

Network Performance Metrics

Service Tiers

The Bureaus’ Guidance clarifies that providers must furnish a separate disclosure for each technology (e.g., DSL, cable modem, fiber, or satellite) and each service tier offered to customers.

Actual Network Performance Metrics

Speed – The item clarifies that providers may comply with the requirement to disclose actual speeds—both download and upload—by disclosing either:

·         the median speed or

·         a range of actual speeds that includes the median speed (e.g., 25th to 75th percentile)

Packet Loss - Packet loss should be disclosed as the “average” packet loss, but the Guidance does not identify suggested periods or methods to measure such loss.

Actual/Expected Performance – The Bureaus’ Guidance states that in order to ensure that the actual and expected network performance metrics can be compared, it is “best” to provide actual and expected performance in “comparable” formats.  The Guidance provides the following example:  “if actual download speed is provided as a range, the expected download speed should use a range with the same percentile endpoints.”

Geographic Granularity – With respect to the obligation to disclose speed, latency and packet loss information “reasonably related” to the geographic area in which the consumer is purchasing service, the Guidance clarifies that for fixed broadband providers (wireline and wireless), such disclosures may be made in each “operational area” (which is defined as that area in which the network has a distinctive set of characteristics).  The item recognizes that most providers will have a single operational area for each broadband service offered.  Mobile providers may use a cellular market area (CMA) as the designated operational area.

The Guidance also states that there is no corresponding requirement to disclose different expected network performance metrics in different geographic areas.  However, the document also states that “to ensure that information regarding performance is accurate and sufficient for consumers to make informed choices, expected network performance disclosed for a geographic area should not exceed actual network performance in that geographic area.”

Peak Usage Periods – The Guidance clarifies that providers may rely on the local time zone for measuring the peak usage period, and that providers have some flexibility to determine the appropriate peak usage periods for their own network performance metrics.

Guidance for Providers Relying Upon Measuring Broadband America Safe Harbor

Fixed – The Guidance reaffirms that providers of fixed broadband services (wireline and wireless) may disclose their results from the Measuring Broadband America (MBA) program, for each service for which the program provides network performance metrics, as a sufficient representation of actual download and upload speeds, actual latency, and actual packet loss of those services.

Mobile –The Guidance explains that the MBA program expects to publish its first 2016 mobile broadband report, which will include a national sample size and network performance metrics for each CMA with a sufficient sample size.  Under that framework, mobile providers that rely on MBA reporting as a safe harbor may disclose their results from the mobile MBA program as a sufficient disclosure of actual download and upload speeds, latency, and packet loss of a service if the results satisfy the sample size criteria (CMA), and if the MBA program has provided CMA-specific network performance metrics of the service in CMAs with an aggregate population of at least one half of the aggregate population of the CMAs in which the service is offered.

Guidance for Providers Not Using MBA Safe Harbor

Mobile – The Guidance clarifies that mobile providers who do not rely upon the MBA safe harbor, and who measure network performance by their own or third party testing, may disclose performance metrics for each CMA in which the service is offered, except that actual network performance in rural or less densely populated areas may be aggregated among CMAs with a population density below 250 people per square mile.

Routes – Expanding on the methods of disclosing network performance metrics, the Bureaus’ Guidance requires that when measuring network performance, providers must use network paths (or “routes”) that accurately reflect actual network performance.  To that end, the item states that providers can ensure a “sufficient representation” of actual network performance of the service by using a “representative sampling” of routes between end users and the points of interconnection with edge providers or other networks.  As an example, the Guidance indicates that fixed providers may choose to measure speed, latency, and packet loss between “measurement clients” in broadband modems and measurement servers that are “located in close proximity to the links on which traffic is exchanged with edge providers or other networks.”  Alternatively, providers that choose not to place “measurement clients” in broadband modems could place “measurement clients” in access networks as long as that approach accurately reflects the performance experienced by consumers of the service.

Point of Sale Requirements

Disclosures Via Website Links – The FCC also uses the Guidance to clarify its prior inconsistent statements regarding reliance upon website links available at a point of sale.  In that regard, the Guidance states that if a provider makes its disclosures through a website link, it “must ensure that consumers actually receive any Open Internet-related information that is relevant to their purchasing decision at all potential points of sale, including in a store, over the phone, and online.”  Further, the Guidance states that providers should ensure that their point of sale disclosure methods “actually lead potential customers to the relevant disclosure information” so that they can make informed purchasing decisions.  Unfortunately, the item offers little guidance on what actions might satisfy the obligation to “actually lead” potential customers to the relevant information.

Consumer Disclosure Safe Harbor - For those providers using the recently-adopted “nutrition label” safe harbor disclosure forms, that approach must also be used at the point of sale (including retail outlets).

This Guidance answers many of the questions raised by the text of the enhanced disclosure rules, and will assist providers in designing their disclosure strategy that is compliant, whether or not they choose to use the safe harbor disclosure forms.  Note that the “enhanced” transparency rules are not yet in effect, as they are pending approval from the OMB.  And, we remind readers that small providers (those with 100,000 or fewer broadband subscribers), have been temporarily exempted from these disclosure requirements, pending further decisions from the FCC.