On December 15, 2015, the FCC Consumer Governmental Affairs Bureau (“CGB”) released an Order extending the temporary small business exemption from enhancements to the modified transparency rule established under the 2015 Open Internet Order for a full year through December 15, 2016. The extension will provide the CGB with additional time to evaluate the burden that compliance with these additional transparency rule requirements imposes on smaller fixed and mobile broadband providers.

In the 2015 Open Internet Order, the Commission adopted enhancements to the existing transparency rule applicable to broadband providers. Concerned that the enhanced requirements would be too great a burden on smaller providers, the Commission adopted a temporary exemption from compliance for broadband providers with 100,000 or fewer subscribers. The Commission tasked the CGB with seeking comment on the exemption and then determining by December 15, 2015 whether to maintain the exemption and, if maintained, what the proper threshold should be.

The enhanced transparency rule requirements include disclosures regarding the following:

  • Commercial terms for prices, other fees, and data cap allowances;
  • Performance characteristics including packet loss, performance by geographic area, and average performance over a reasonable time and during peak usage;
  • Network practices including practices applied to traffic associated with a particular user or group, including any application-agnostic degradation of service, user based or application based practices. The disclosure must include:
    • The purpose of the practice;
    • Users or data plans that may be affected;
    • What triggers application of the practice;
    • The type of traffic subject to the practice;
    • The likely effect on the end users' experience; and
  • A voluntary safe harbor that providers may use to meet the disclosure requirements. Note: A recommendation has been made to the Commission as to the content and format of the safe harbor disclosure, but it is not effective until approved by the Commission.

Smaller broadband providers subject to the exemption should tread cautiously when deciding whether or not to disclose items required by the enhancements. In the 2015 Open Internet Order, the Commission left open the possibility that smaller providers could violate the existing transparency rule adopted under the 2010 Open Internet Order if they fail to disclose information “sufficient to allow consumers to make informed choices,” even if such information is not specifically required by the enhancements.