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FCC to ISPs: Be Transparent Or Else

The FCC is laying down the law to cable and other ISPs about what they have to report under the still-extant Open Internet transparency rule.

The FCC accentuated the negative in its headline for an advisory it issued from the Enforcement Bureau spelling out what ISP transparency obligations are: "FCC to ISPs: Inaccurate Disclosures Violate Transparency Rule," and in the statements from top officials.

All broadband providers have to disclose to their customers "network management practices, performance, and commercial terms," and they have to be accurate, or else.

"A provider making an inaccurate assertion about its service performance in an advertisement, where the description is most likely to be seen by consumers, could not defend itself against a Transparency Rule violation by pointing to an 'accurate' official disclosure in some other public place," the advisory says. "Thus, the Transparency Rule requires accuracy wherever statements regarding network management practices, performance, and commercial terms appear-in mailings, on the sides of buses, on website banner ads, or in retail stores."

FCC Chairman Tom Wheeler said that, henceforth "no broadband provider can claim they didn't know we were watching to see that they disclose accurate information about the services they provide. The FCC's transparency rule requires that consumers get the information they need to make informed choices about the broadband services they purchase. We expect providers to be fully transparent about the details of their services, and we will hold them accountable if they fall down on this obligation to consumers."

That tone was echoed in a statement released by Acting Bureau Chief Travis LeBlanc, who talked about failure and accountability: "Consumers rightly expect to receive the Internet access that they have been promised by their service providers. We are committed to holding broadband Internet providers accountable if they fail to deliver on the commercial promises they make to the American people."

The advisory says the rule applies to every provider of broadband Internet, cable, phone, satellite, fixed and wireless,

Why the stern warning?

FCC Press Secretary Kim Hart said the advisory came "in response to the fact that the FCC has received hundreds of consumer complaints over the past year about an open Internet generally and issues related to the accuracy of the information they are getting from ISPs, including whether [those ISPs] deliver promised speeds or are up front about data caps, and other issues that have the potential to impact consumer bills."

Hart confirms that those are complaints separate from public comments in the open Internet proceeding.

And what is the penalty for running afoul of the transparency rule.

The advisory says: "Parties that violate the Transparency Rule may be subject to Commission enforcement, potentially including monetary penalties as set out in Section 503(b) of the Communications Act."

In a footnote, it points out that could be up to $1,575,000 for "any single act or failure to act."

Transparency is key to Wheeler's effort to create an Open Internet order that passes court muster since it relies on case-by-case determinations on whether any discriminatory practice is commercially reasonable.

John Eggerton
John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.