In response to requests from broadband providers, the Office of the General Counsel and the Enforcement Bureau of the Federal Communications Commission (“FCC”) have released a public notice providing guidance regarding specific methods of disclosure that will be considered in compliance with the “transparency” rule adopted in the FCC’s “network neutrality” order (referred to by the FCC as the “Open Internet order”).

In that order, the FCC adopted a rule requiring that “a person engaged in the provision of broadband Internet access service . . . publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its . . . 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.” (See the Fleischman and Harding Memorandum to Clients dated December 22, 2010 for more information about the order.) The order stated that effective disclosures would include information about a provider’s congestion management, application specific behavior, device attachment rules, security measures, system performance information, pricing, privacy polices and redress options.

While cautioning that the particular methods outlined in the public notice are not required or exhaustive, the notice provides guidance in five areas:

  1. Extent of Required Disclosures

While the Open Internet order stated that its list of potential disclosure topics “is not necessarily exhaustive,” the notice clarifies that the FCC does not intend, at this time, to require disclosures beyond those specifically enumerated in the text of the order and the rule.

  1. Service Description

The notice notes that the FCC is currently conducting a “broadband performance measurement project” in consultation with 13 fixed broadband providers (that account for 86% of fixed broadband connections nationwide), and that the results of this project will inform additional guidance in this area. In the meantime, the notice states that participants in the project may fulfill the performance disclosure by disclosing their results from the project, including the mean upload and download speeds in megabits per second during the “busy hour” between 7 pm and 11 pm on weeknights for a particular tier of service. Similarly, roundtrip latency should be disclosed during the busy hour time period.

Non-participants in the project can use the methodology developed through the project once it is released, or actual performance based on internal testing, consumer speed test data or reliable, relevant data from third party sources.

Mobile broadband providers, which are also subject to the rules, can disclose internal or third party testing results, which would include upload and download speeds in megabits per second and mean roundtrip latency. Providers lacking such testing data could disclose a Typical Speed Range (TSR) representing the range of speeds and latency that can be expected by most customers for each technology/service tier offered, along with a statement that such information was the best approximation available to the provider.

The notice encourages both fixed and mobile broadband providers to disclose the source of their performance measurements and the underlying methodology used to measure performance. In the event the provider knows there has been a change to the system that might affect performance, providers will be expected to re-evaluate previous performance disclosures.

  1. Disclosures to Content, Application, Service and Device Providers

While the Open Internet order requires disclosure sufficient for “content, application, service, and device providers to develop, market, and maintain Internet offerings,” the notice clarifies that the disclosures otherwise required for consumer broadband users will be considered to satisfy the transparency requirements with respect to such providers. The notice notes that broadband providers still must disclose any certification and approval processes for devices and applications.

  1. Security Measures

The notice states that when disclosing security measures, the FCC is most concerned with measures that are likely to affect a consumer’s ability to access the content, applications, services and devices of his or her choice. Thus, broadband providers would be expected to disclose security measures intended to prevent the spread of viruses, malware, spam, or other threats or measures that might prevent users from running a mail or web server. Providers are not expected to disclose internal network security measures, such as routing security practices.

  1. Point-of-Sale Disclosures

The notice clarifies that it will not be necessary for providers to distribute hard copies of disclosure materials or provide extensive training to employees to effectuate disclosure at “brick and mortar” locations. The point-of-sale disclosure requirement can be met by directing customers orally and/or prominently in writing to a web address where the disclosures are posted. This website should be a dedicated disclosure site as opposed to the general company home page. If hard copies of disclosures are not made available at brick and mortar locations, equipment such as a computer, tablet or smart phone should be made available so the disclosure can be viewed online at the store.