Empowering Broadband Consumers Through Transparency, 63853-63861 [2023-20115]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 88, Number 179 (Monday, September 18, 2023)]
[Rules and Regulations]
[Pages 63853-63861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20115]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 8

[CG Docket No. 22-2; FCC 23-68; FR ID 170837]


Empowering Broadband Consumers Through Transparency

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) addresses three petitions requesting that the Commission 
clarify and/or reconsider certain of its broadband consumer label 
requirements. Specifically, we affirm our determinations that providers 
must itemize monthly discretionary fees on the label and state how much 
data is provided with the service plan, as outlined by the label 
template. We also clarify that E-Rate and Rural Health Care (RHC) 
Program service providers are not required to include a broadband label 
for enterprise and special access services provided through those 
programs. In addition, we revise the Commission's requirement to 
document each instance when a provider directs a consumer to a label at 
an alternative sales channel and to retain such documentation for two 
years. And we make clear that providers that opt to include government 
taxes in their monthly base price may state on the label that 
government taxes are included. Our actions preserve consumer access to 
clear, easy-to-understand, and accurate information about the cost for 
broadband services and will empower consumers to choose services that 
best meet their needs and match their budgets.

DATES: 
    Effective date: September 18, 2023.
    Compliance date: FCC will announce compliance dates for the 
amendments to 47 CFR 8.1(a)(1) and (2) and (b) by publication of a 
document in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Erica H. McMahon, 
[email protected] or (202) 418-0346, of the Consumer and 
Governmental Affairs Bureau, Consumer Policy Division. For information 
regarding the PRA information collection requirements contained in the 
PRA, contact Cathy Williams, Office of Managing Director, at (202) 418-
2918, or [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration, FCC 23-68, in CG Docket No. 22-2, adopted on August 
25, 2023 and released on August 29, 2023, which amends the Commission's 
broadband consumer label requirements. The full text of this document 
is available online at https://docs.fcc.gov/public/attachments/FCC-23-68A1.pdf. To request this document in accessible formats for people 
with disabilities (e.g., Braille, large print, electronic files, audio 
format) or to request reasonable accommodations (e.g., accessible 
format documents, sign language interpreters, CART), send an email to 
[email protected] or call the FCC's Consumer and Governmental Affairs 
Bureau at (202) 418-0530 (voice).

Final Paperwork Reduction Act of 1995 Analysis

    This document may contain new or modified information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. All such new or modified information collection 
requirements will be submitted to the Office of Management and Budget 
(OMB) for review under section 3507(d) of the PRA. OMB, the general 
public, and other Federal agencies will be invited to comment on any 
new or modified information collection requirements contained in this 
proceeding.
    In addition, we note that pursuant to the Small Business Paperwork 
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we 
previously sought specific comment on how the Commission might further 
reduce the information collection burden for small business concerns 
with fewer than 25

[[Page 63854]]

employees, and we received no comment. In this present document, we 
have assessed the effects of permitting providers to establish the 
business practices and processes it will follow in distributing the 
label through alternative sales channels in lieu of documenting each 
instance they direct consumers to the label and to note on the label 
that government taxes are included in the monthly price, and find that 
there are no additional burdens for small businesses with fewer than 25 
employees.

Congressional Review Act

    The Commission sent a copy of document FCC 23-68 to Congress and 
the Government Accountability Office pursuant to the Congressional 
Review Act, 5 U.S.C. 801(a)(1)(A).

Synopsis

    1. On reconsideration of the Empowering Broadband Consumers Through 
Transparency Report and Order, CG Docket No. 22-2, Report and Order, 
published at 87 FR 76959 (Dec. 16, 2022) (Broadband Label Order), we 
amend the Commission's broadband consumer label rules to address three 
petitions requesting that the Commission clarify and/or reconsider 
certain label requirements.

A. Identifying Additional Monthly Provider Fees on Labels

    2. We affirm that broadband internet access service providers (ISPs 
or providers) must itemize the fees they add to base monthly prices, 
including fees related to government programs they choose to ``pass 
through'' to consumers, such as fees related to universal service or 
regulatory fees. We thus affirm that consumers should know both the 
total cost of service and what goes into that cost to both budget and 
comparison shop between plans and providers. Clear itemization of all 
fees--including those related to regulatory programs--is essential to 
our goal of empowering consumers to make good purchase decisions.
    3. We therefore reject ACA Connects--America's Communications 
Association (ACA Connects) et al.'s request that providers simply state 
on the label that additional fees may apply and that these fees may 
vary depending on location. We also reject their alternative proposal 
that providers identify ``generally the maximum dollar figure that 
could be passed through to the consumer per month, rather than 
requiring providers to itemize each and every fee.'' Neither would 
accomplish the label goal of empowering good consumer decisions because 
they leave consumers unable to reliably predict the cost of particular 
plans for purposes of comparison shopping. Providing specific fee 
amounts also accords with the approach reflected in the 2016 Public 
Notice (Consumer and Governmental Affairs, Wireline Competition, and 
Wireless Telecommunications Bureaus Approve Open internet Broadband 
Consumer Labels, GN Docket No. 14-28, Public Notice, 31 FCC Rcd 3358 
(CGB/WCB/WTB 2016)), that Congress directed the Commission to consider 
in adopting the label, and we are not persuaded to depart from that 
approach in this regard.
    4. We also disagree that clear disclosure of these fees ``has the 
potential to cause significant confusion for consumers and add 
unnecessary complexity for providers'' due to the ``huge variety and 
quantity of fees on broadband providers.'' Providers must itemize the 
fees on consumer bills, and we see no reason why consumers cannot 
assess the fees at the point-of-sale any less than they can when they 
receive a bill. Providers are free, of course, to not pass these fees 
through to consumers to differentiate their pricing and simplify their 
label display if they believe it will make their service more 
attractive to consumers and ensure that consumers are not surprised by 
unexpected charges.
    5. Further, we are not persuaded that it will be burdensome for 
ISPs to itemize on the label those fees they opt to pass along to 
consumers above the monthly price, particularly since providers 
acknowledge being able to describe such fees to a consumer over the 
phone and on a consumer's bill once the consumer subscribes to service. 
We also find that any such burdens are far outweighed by the benefits 
to consumers when they are shopping for service. And, ISPs could 
alternatively roll such discretionary fees into the base monthly price, 
thereby eliminating the need to itemize them on the label.
    6. Moreover, we are not persuaded that a provider will be forced to 
list on the label ``potentially hundreds of fees for all jurisdictions 
in its footprint,'' when only a subset of fees listed would actually 
apply to an individual customer. We do agree, however, that such a 
practice would ``make the labels very lengthy and unwieldy, diminishing 
their utility to consumers and undermining their purpose.'' We, 
therefore, reiterate that labels must be accurate based on the 
consumer's location. Identifying fees that do not apply to a consumer 
in a particular geographic location would effectively render comparison 
shopping impossible--a primary purpose of the label. And burying the 
fees that do apply on a lengthy list of those that do not risks 
displaying a label that is simply inaccurate. Thus, we find that 
listing fees on the label that are irrelevant to a particular consumer 
shopping for broadband service is inconsistent with the goals of the 
Infrastructure Act.
    7. Finally, we disagree, for the reasons above, that identifying 
the maximum out-of-pocket fees a prospective customer may be 
responsible for if they subscribe to the service ``gives the customer 
critical information about the service they are considering in a much 
more efficient and effective manner than attempting to itemize fees on 
a jurisdiction-specific basis.'' We believe that identifying a maximum 
dollar figure that a customer would pay in additional provider fees per 
month does not sufficiently disclose to consumers what they will be 
charged for and how those fees compare to another provider's service 
offerings.
    8. We also emphasize, however, that if the provider does not impose 
additional discretionary fees on top of the base monthly price, but 
instead incorporates them into the monthly price, the provider can 
state ``None'' on the label template.

B. Describing Data Allowances on Labels

    9. We affirm that providers should keep their descriptions of any 
data allowances simple on the label and should only describe data 
allowance details in their more complete service descriptions in their 
advertising materials and on websites. Our conclusion supports a main 
goal of the label, to require providers to simply, clearly, and 
consistently describe their services to enable consumers to comparison 
shop.
    10. We therefore deny CTIA--The Wireless Association's (CTIA) 
request that wireless providers be able to use multiple lines of data 
allowance descriptions on the label. CTIA states that wireless 
providers offer consumers data allowance options that differ from those 
offered by wireline providers and that such data allowance options may 
vary between handsets and hotspots. We agree that consumers may want to 
see these details before purchase, but believe consumers are best 
served by a high-level description of data allowances on the label, and 
that allowing providers to clutter the label with detail about those 
allowances would undermine its simplicity and utility.
    11. Our conclusion is consistent with the Broadband Label Order, 
where we

[[Page 63855]]

required providers to identify the amount of data included with the 
monthly price in the label template. We explained that providers must 
disclose any charges or reductions in service for any data used in 
excess of the amount included in the plan. We also concluded that 
providers must identify the increment of additional data, e.g., ``each 
additional 50GB,'' if applicable, and disclose any additional charges 
once the consumer exceeds the monthly data allowance. We clarify here 
that the increment of additional data and the additional charges should 
be associated with the data tier of the data cap on the label. We 
further stated that limits on data usage are critical pieces of 
information for consumers, along with any additional charges the 
provider may assess once a consumer exceeds such a cap. But we 
emphasized that it is important to keep the label information as simple 
as possible for consumers and to require providers to comply by 
including links to their websites for more detailed information about 
data allowances.
    12. Finally, we disagree with commenters that suggest that wireless 
providers will have to modify or otherwise limit their competitive 
service offerings to fit the label framework. Instead, we reiterate 
that, if providers wish to provide more detailed information about 
their data allowances, including different allowances for handsets and 
hotspots, they may do so through links to their websites. We also 
conclude that the link must be included in the ``Data Included with 
Monthly Price'' section of the label such that ``Data Included'' would 
appear as a hyperlink to more information on the provider's website 
regarding its data allowance options.

C. Labels for E-Rate and Rural Health Care (RHC) Programs

    13. We grant the Cincinnati Bell Telephone Company LLC Joint 
Petition and affirm our determination in the Broadband Label Order that 
``enterprise service offerings or special access services are not 
`mass-market retail services,' and therefore, not covered by our label 
requirement.'' As explained in the Broadband Label Order, the 
Infrastructure Act requires the display of labels for ``broadband 
internet access service plans.'' Broadband internet access service is 
currently defined in Sec.  8.1(b) of our rules as ``a mass-market 
retail service by wire or radio that provides the capability to 
transmit data to and receive data from all or substantially all 
internet endpoints, including any capabilities that are incidental to 
and enable the operation of the communications service, but excluding 
dial-up internet access service.'' We confirmed in the Broadband Label 
Order that ``mass-market retail services'' do not include enterprise 
service offerings or special access services, which are typically 
offered to larger organizations through customized or individually 
negotiated arrangements, and that such services are not covered by the 
label disclosure requirements.
    14. Based on the petition and commenters' filings, we recognize 
that footnote 36 of the Broadband Label Order, which stated that ``we 
require E-Rate and RHC providers to provide a label along with any 
competitive bids submitted pursuant to the E-Rate or RHC competitive 
bidding processes, whether or not such provider defines their offered 
service as an `enterprise' service,'' may have resulted in some 
confusion. We agree that, to the extent that broadband label 
requirements generally exclude enterprise/special access service 
offerings, it makes most sense in this context to take a uniform 
approach, including with respect to services in the E-Rate and RHC 
programs. As Petitioners point out, paragraph 18 of the Broadband Label 
Order stated that ``[t]he Infrastructure Act expressly defines 
`broadband internet access service' by reference to the definition in 
section 8.1(b) of our rules, and the Commission previously had 
interpreted that rule to include E-Rate and RHC services.'' We 
reconsider the implications of that language in this context, making 
clear the uniform treatment of enterprise/special access service 
offerings for purposes of our broadband label requirements.
    15. Thus, we clarify that footnote 36 does not contradict our 
determination regarding enterprise service offerings or require 
broadband labels for all broadband services in the E-Rate and RHC 
programs. Rather, we emphasize that, regardless of how the provider 
names or defines its offering, the manner in which the service is 
offered is dispositive of whether the labeling requirements apply. We 
therefore affirm here that the enterprise/special access ``exemption'' 
discussed in the Broadband Label Order typically applies when the 
service offering is customized for the beneficiary through individually 
negotiated agreements. While we clarify that service offerings to large 
customers (or other entities) that are not mass-market retail services 
are not covered by the disclosure requirements here, we do not do so 
for all the reasons petitioners and commenters raise. For example, we 
are not persuaded that it would be overly burdensome for wholesalers 
and resellers to create labels for their larger customers or that the 
labels would be confusing for the customers themselves.
    16. We also reiterate, however, that the label requirements 
continue to apply to mass-market broadband services offered in the E-
Rate and RHC programs and agree with commenters that ``such disclosures 
would especially benefit the smaller and more rural schools, libraries 
and rural health care providers that often purchase standard `off-the-
shelf' internet access service.'' We see no reason why the E-Rate and 
RHC bidding processes means that such consumers would not benefit from 
the label. The definition in Sec.  8.1(b) of the Commission's rules 
includes ISPs participating in the E-Rate and RHC programs and, thus, 
they must provide labels to prospective customers during the 
competitive bidding process, during which time customers define the 
services that they need and providers put forward bids.

D. Documenting Interactions With Consumers at Alternate Sales Channels

    17. In response to the ACA Connects Joint Petition, we reconsider 
the requirement that a provider must document each instance when it 
directs a consumer to a label at an alternative sales channel (e.g., 
retail stores, kiosks, and over the phone) and retain such 
documentation for two years. In doing so, we grant ACA Connects' 
request and clarify in accordance with such request that the 
requirement will be deemed satisfied if: (1) the provider establishes 
the business practices and processes it will follow in distributing the 
label through alternative sales channels; (2) retains training 
materials and related business practice documentation for two years; 
and (3) provides such information to the Commission upon request, 
within 30 days. Providers may also comply with the requirement as 
described in the Broadband Label Order instead (i.e., that they 
document each instance when a consumer is provided a label at an 
alternative sales channel and retain such documentation for a period of 
two years). No commenter opposed Petitioners' request.
    18. We agree with petitioners that this clarification will avoid 
unnecessary burdens and costs on providers that may risk diverting 
resources to otherwise assist consumers with making broadband purchases 
at alternative sales channels. We share their concerns that creating an 
additional system by which customer-facing employees are required to 
record the details of when and how they share the label in every 
customer interaction may impose significant costs

[[Page 63856]]

on providers. We are persuaded by petitioners that providers deal with 
millions of customers and prospective customers by phone, in retail 
locations, and at ``pop-up'' sales outlets such as fairs or 
exhibitions, and that it may be challenging for providers to capture 
and retain such documentation when consumers are provided with access 
to the labels at each and every point of sale.
    19. We believe that permitting providers to alternatively establish 
business practices and training materials to ensure labels are 
distributed consistently and accurately in retail stores and other 
sales channels will sufficiently protect consumers. It is also 
consistent with our online point-of-sale requirements, whereby 
providers need not document each time a consumer views a label on their 
websites; they must instead archive all labels after they are removed 
from their websites and maintain such archive for at least two years 
after the service plan is no longer offered to new customers. As with 
archived labels, which must be provided to the Commission, upon 
request, within 30 days, we also find that, should the Commission 
request a provider's training materials and business practice 
documentation for alternate sales channels, ISPs must provide such 
information within 30 days. As a result, we amend Sec.  8.1(a)(2) of 
the Commission's rules to clarify that the requirement to document 
interactions with consumers at alternate sales channels will be deemed 
satisfied if, instead, the provider: (1) establishes the business 
practices and processes it will follow in distributing the label 
through alternative sales channels; (2) retains training materials and 
related business practice documentation for two years; and (3) provides 
such information to the Commission upon request, within 30 days.

E. Identifying Government Taxes on Labels

    20. We grant CTIA's request to clarify that wireless providers have 
the flexibility to state ``taxes included'' or add similar language to 
the label template when the provider has chosen to include taxes as 
part of its base price. CTIA contends that some wireless providers have 
chosen to build taxes into the monthly prices that they advertise. No 
party opposed this request.
    21. We agree with CTIA that the labels should accommodate tax-
included pricing in keeping with the fundamental purpose of providing 
consumers with clear and accurate information, and that this was the 
Broadband Label Order's intent. We believe our clarification will 
benefit consumers by helping them understand the total price for a 
provider's service at the point of sale. And, unlike the discretionary 
provider fees we address above, providers must assess a specific amount 
of taxes on consumers; thus, consumers generally are not comparison 
shopping based on such taxes and how they are identified on the label. 
We therefore agree that providers may modify the label template to 
accommodate this practice. Specifically, they may include a statement 
on the label that government taxes are ``included'' in the monthly rate 
or some similar language in place of the statement that the amount of 
government taxes ``varies by location.''
    22. We also agree with CTIA that ``[s]tating that `taxes will 
apply' or that they `vary by location' where [taxes] have already been 
factored into the quoted prices would not be accurate and would confuse 
consumers, not help them, which is a result the Commission surely did 
not intend.'' We therefore make clear that providers may only avail 
themselves of our clarification when they have included all taxes in 
their monthly base price and may not rely on general statements that 
taxes may apply if such taxes are not included in the base price.

I. Supplemental Final Regulatory Flexibility Analysis

    23. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Empowering Broadband Consumers Through 
Transparency, Notice of Proposed Rulemaking, CG Docket No. 22-2, 87 FR 
6827 (Feb. 7, 2022) (Broadband Label NPRM). The Commission sought 
written public comment on the proposals in the Broadband Label NPRM, 
including comment on the IRFA. The Commission subsequently incorporated 
a Final Regulatory Flexibility Analysis (FRFA) in the Broadband Label 
Order. This Supplemental Final Regulatory Flexibility Analysis 
(Supplemental FRFA) incorporates by reference the FRFA in the Broadband 
Label Order and reflects changes to the Commission's rules arising from 
actions taken in the Order on Reconsideration in response to three 
Petitions for Reconsideration of the Broadband Label Order filed by ACA 
Connects et al., Cincinnati Bell et al., and CTIA and conforms to the 
RFA.

A. Need for, and Objectives of, the Order on Reconsideration

    24. The Order on Reconsideration addresses issues resulting from 
the Commission's efforts to implement the Infrastructure Investment and 
Jobs Act (Infrastructure Act) which directs the Commission ``[n]ot 
later than 1 year after the date of enactment of th[e] Act, to 
promulgate regulations to require the display of broadband consumer 
labels, as described in the Public Notice of the Commission issued on 
April 4, 2016 (DA 16-357), to disclose to consumers information 
regarding broadband internet access service plans.'' In response to the 
Infrastructure Act, the Commission adopted the Broadband Label Order, 
requiring broadband labels so that consumers have access to clear, 
easy-to-understand, and accurate information about broadband services 
that encourages competition, innovation, low prices, and high-quality 
services. The information broadband internet service providers (ISPs) 
are required to include in the labels empowers consumers to choose 
services that best meet their needs and match their budgets and ensures 
that they are not surprised by unexpected charges or service quality 
that falls short of their expectations. The Order on Reconsideration 
grants some of petitioners' requests and denies other requests to 
ensure that the labels the Commission adopted remain a simple and clear 
means to disclose information about broadband services and to ensure 
consumers have the information they need to make educated decisions 
about purchasing broadband internet access service. The Order on 
Reconsideration therefore affirms some of the Commission's 
determinations in the Broadband Label Order and reconsiders some 
others, so the labels do not overwhelm consumers with too much 
information or overburden providers.
    25. Specifically, the Commission grants the Cincinnati Bell Joint 
Petition and affirms the determination in the Broadband Label Order 
that ``enterprise service offerings or special access services are not 
`mass-market retail services,' and therefore, not covered by our label 
requirement.'' The Order on Reconsideration clarifies that footnote 36 
of the Broadband Label Order, which stated that the Commission requires 
``E-Rate and RHC providers to provide a label along with any 
competitive bids submitted pursuant to the E-Rate or RHC competitive 
bidding processes, whether or not such provider defines their offered 
service as an `enterprise' service,'' was not intended to contradict 
the Commission's determination regarding enterprise service offerings 
or to require broadband labels for all broadband services in the E-Rate 
and RHC programs. Rather, the Commission

[[Page 63857]]

emphasizes in the Order on Reconsideration that regardless of how the 
provider names or defines its offering, the manner in which the service 
is offered is dispositive of whether the labeling requirements apply.
    26. The Commission also reconsiders the requirement that a provider 
must document each instance when it directs a consumer to a label at an 
alternative sales channel (e.g., retail stores, kiosks, and over the 
phone) and retain such documentation for two years. In doing so, the 
Commission grants ACA Connects et al.'s request and clarifies that the 
requirement will be satisfied if the provider instead: (1) establishes 
the business practices and processes it will follow in distributing the 
label through alternative sales channels; (2) retains training 
materials and related business practice documentation for two years; 
and (3) provides such information to the Commission upon request, 
within thirty days. The Commission agrees with petitioners that this 
clarification will avoid unnecessary burdens and costs on providers 
that may risk diverting resources to otherwise assist consumers with 
making broadband purchases at alternative sales channels.
    27. Additionally, in the Order on Reconsideration the Commission 
clarifies that wireless providers have the flexibility to make clear on 
the labels whether government taxes will be added to the monthly base 
price by adding ``taxes included'' or similar language as appropriate 
to the label template. The Commission agrees that some providers 
include government taxes in their monthly base price and that doing so 
could benefit consumers in helping them understand the total price for 
a provider's service at the point of sale. Therefore we determined that 
providers may modify the label template to accommodate this practice.
    28. The Order on Reconsideration declines, however, to reconsider 
the requirement that providers identify and list on the label any 
additional fees that they charge consumers each month on top of the 
monthly base price. As stated in the Broadband Label Order, the 
Commission believes requiring that the labels clearly itemize any 
additional discretionary fees and state that additional government 
taxes will apply to each plan will provide consumers with a more 
complete understanding of the total cost for broadband service. 
Further, the requirement will allow consumers to more meaningfully 
compare providers' rates and service packages, and to make more 
informed decisions when purchasing broadband services. The Commission 
explains that providers must list fees such as monthly charges 
associated with regulatory programs and fees for the rental or leasing 
of modem and other network connection equipment.
    29. The Order on Reconsideration also denies CTIA's request to 
clarify that wireless providers have the flexibility to describe their 
data allowances on the label in ways that may be inconsistent with the 
adopted label template. The Commission continues to believe that 
consumers will be best served by simple labels that are comparable 
across providers. Permitting wireless providers to independently 
describe data allowances in various ways may hinder comparison shopping 
and may lead to an unwieldy or complicated label.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA and FRFA

    30. In the Broadband Label Order, the Commission solicited comments 
on how to minimize the economic impact of the new rules on small 
businesses. The FRFA addressed the concerns of commenters who argued 
that smaller entities would face challenges in complying with the 
proposed label requirements given their small staffs and limited 
resources. The Cincinnati Bell Joint Petition, ACA Connects Joint 
Petition, and the CTIA Petition addressed in the Order of 
Reconsideration, and associated comments, did not raise any concerns 
with the FRFA.

C. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    31. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA), and to provide a detailed statement of any change made to the 
proposed rules as a result of those comments.
    32. The Chief Counsel did not file any comments in response to the 
rules adopted in this proceeding.

D. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply

    33. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the rules adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' small organization,'' and ``small government 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA.
    34. As noted above, the Commission incorporated a FRFA into the 
Broadband Label Order. In that analysis, the Commission described in 
detail the various small business entities that may be affected by the 
final rules. The Order on Reconsideration amends the final rules 
adopted in the Broadband Label Order affecting broadband internet 
access service providers. Accordingly, in this Supplemental FRFA, we 
hereby incorporate by reference the descriptions and estimates of the 
number of small entities that might be significantly affected by the 
Order on Reconsideration from the Regulatory Flexibility Analysis in 
the Broadband Label Order.

E. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    35. In the Order on Reconsideration, the Commission modifies rules 
adopted in the Broadband Label Order to reconsider the requirement that 
a provider must document each instance when it directs a consumer to a 
label at an alternative sales channel (e.g., retail stores, kiosks, and 
over the phone) and retain such documentation for two years. In doing 
so, the Commission clarifies that the requirement will be deemed 
satisfied if instead: (1) the provider establishes the business 
practices and processes it will follow in distributing the label 
through alternative sales channels; (2) retains training materials and 
related business practice documentation for two years; and (3) provides 
such information to the Commission upon request, within thirty days.
    36. The Commission does not have sufficient information on the 
record to determine whether small entities will be required to hire 
professionals to comply with its decisions to or to quantify the cost 
of compliance for small entities. The Commission, however, anticipates 
the approaches it has taken to implement the requirements will have 
minimal or de minimis cost implications and should significantly reduce 
compliance requirements for small entities that may have smaller staff 
and fewer resources. As the Commission emphasizes in the Order on 
Reconsideration, the clarification will avoid unnecessary burdens and 
costs on providers that may risk diverting

[[Page 63858]]

resources to otherwise assist consumers with making broadband purchases 
at alternative sales channels. The Commission agrees that requiring 
providers to create an additional system by which customer-facing 
employees are required to record the details of when and how they share 
the label in every customer interaction may impose significant costs on 
providers.

F. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    37. The RFA requires an agency to provide ``a description of the 
steps the agency has taken to minimize the significant economic impact 
on small entities . . . including a statement of the factual, policy, 
and legal reasons for selecting the alternative adopted in the final 
rule and why each one of the other significant alternatives to the rule 
considered by the agency which affect the impact on small entities was 
rejected.''
    38. The Commission considered feedback in response to the 
Cincinnati Bell Joint Petition, ACA Connects Joint Petition, and CTIA 
Petition and evaluated it with the goal of giving broadband providers 
some flexibility in how they document their employees' interactions 
with consumers in alternate sales channels and how they ensure the 
broadband labels are displayed for consumers. Instead of documenting 
each instance when a consumer is provided a label at an alternative 
sales channel in the original rule, the Commission believes requiring 
providers to develop business practices and training materials for 
their employees and to retain and make those documents available to the 
Commission upon request within thirty days is an alternative that will 
minimize the impact on small entities and continue to protect the 
interests of consumers for whom the label provides critical information 
about broadband services. This should significantly minimize any 
compliance costs and burdens on small entities that are subject to the 
label requirements.
    39. The Commission considered the Petitioners' request but declined 
to reconsider the requirement that providers identify and list on the 
label any additional fees that they charge consumers each month on top 
of the monthly base price. The Commission was not persuaded that it 
will be burdensome for providers to itemize on the label those fees 
that they opt to pass along to consumers above the monthly price, 
particularly since providers acknowledge being able to describe such 
fees to a consumer over the phone and on a consumer's bill once he/she 
subscribes to service. Further, the Commission found that any such 
burdens are far outweighed by the benefits to consumers.

II. Ordering Clauses

    40. It is ordered, pursuant to sections 4(i), 4(j), 13, 201(b), 
254, 257, 301, 303, 316, and 332 of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 154(j), 163, 201(b), 254, 257, 301, 303, 
316, 332, section 60504 of the Infrastructure Investment and Jobs Act, 
Public Law 117-58, 135 Stat. 429 (2021), and section 904 of the 
Consolidated Appropriations Act, 2021, Public Law 116-260, 134 Stat. 
1182 (2020), as amended, that the Order on Reconsideration is adopted, 
and that part 8 of the Commission's rules, 47 CFR part 8, is amended as 
set forth below.
    41. It is further ordered that the Order on Reconsideration shall 
be effective upon publication in the Federal Register. Compliance with 
the amendments to Sec.  8.1(a)(1) of the Commission's rules, 47 CFR 
8.1(a)(1), which may contain new or modified information collection 
requirements, will not be required until the later of: (i) the 
compliance dates for the amendments to Sec.  8.1(a)(1) effected in FCC 
22-86, to be announced by the Consumer and Governmental Affairs Bureau, 
which will be one year after OMB completes its review of requirements 
the Consumer and Governmental Affairs Bureau has determined are subject 
to the Paperwork Reduction Act for providers with 100,000 or fewer 
subscribers and six months after OMB completes its review of the 
requirements the Consumer and Governmental Affairs Bureau has 
determined are subject to the Paperwork Reduction Act for all other 
providers; or (ii) completion of OMB review of any information 
collection requirements in the amendments to Sec.  8.1(a)(1) in the 
Order on Reconsideration that the Consumer and Governmental Affairs 
Bureau determines is required under the Paperwork Reduction Act. 
Compliance with the amendments to Sec.  8.1(a)(2) of the Commission's 
rules, 47 CFR 8.1(a)(2), which may contain new or modified information 
collection requirements, will not be required until the later of: (i) 
the compliance dates for the amendments to Sec.  8.1(a)(2) (other than 
the requirement to make labels accessible in online account portals) 
effected in FCC 22-86, to be announced by the Consumer and Governmental 
Affairs Bureau, which will be one year after OMB completes its review 
of the requirements the Consumer and Governmental Affairs Bureau has 
determined are subject to the Paperwork Reduction Act for providers 
with 100,000 or fewer subscribers and six months after OMB completes 
its review of the requirements the Consumer and Governmental Affairs 
Bureau has determined are subject to the Paperwork Reduction Act for 
all other providers; or (ii) completion of OMB review of any 
information collection requirements in the amendments to Sec.  
8.1(a)(2) in the Order on Reconsideration that the Consumer and 
Governmental Affairs Bureau determines is required under the Paperwork 
Reduction Act. The Commission directs the Consumer and Governmental 
Affairs Bureau to announce the compliance dates for Sec.  8.1(a)(1) and 
(2) by subsequent Public Notice and to cause Sec.  8.1(a)(1) and (2) to 
be revised accordingly.
    42. It is further ordered that, pursuant to 47 CFR 1.4(b)(1), the 
period for filing petitions for reconsideration or petitions for 
judicial review of any aspect of the Order on Reconsideration will 
commence on the date that a summary of the Order on Reconsideration is 
published in the Federal Register.
    43. It is further ordered that the Petitions for Reconsideration 
filed by ACA Connects et al., Cincinnati Bell et al., and CTIA in CG 
Docket No. 22-2 on January 17, 2023, are granted in part and otherwise 
denied.
    44. It is further ordered that the Commission's Office of the 
Managing Director, Reference Information Center, shall send a copy of 
the Order on Reconsideration, including the Supplemental Final 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.
    45. It is further ordered that the Office of the Managing Director, 
Performance Evaluation and Records Management, shall send a copy of the 
Order on Reconsideration in a report to be sent to Congress and to the 
Governmental Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 8

    Cable television, Common carriers, Communications common carriers, 
Reporting and recordkeeping requirements, Satellites, 
Telecommunications, Telephone, Radio.


[[Page 63859]]


Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 8 as follows:

PART 8--INTERNET FREEDOM

0
1. The authority citation for part 8 continues to read as follows:

    Authority: 47 U.S.C. 154, 201(b), 257, 303(r), and 1753.


0
2. Amend Sec.  8.1 by revising paragraphs (a)(1) and (2) and (b) to 
read as follows:


Sec.  8.1  Transparency.

    (a) * * *
    (1) Any person providing broadband internet access service shall 
create and display an accurate broadband consumer label for each stand-
alone broadband internet access service it currently offers for 
purchase. The label must be prominently displayed, publicly available, 
and easily accessible to consumers, including consumers with 
disabilities, at the point of sale with the content and in the format 
prescribed by the Commission in ``[Fixed or Mobile] Broadband Consumer 
Disclosure,'' in figure 1 to this paragraph (a)(1).

Figure 1 to Paragraph (a)(1)--[Fixed or Mobile] Broadband Consumer 
Disclosure Label

BILLING CODE 67128-01-P

[[Page 63860]]

[GRAPHIC] [TIFF OMITTED] TR18SE23.198

BILLING CODE 67128-01-C
    (2) Broadband internet access service providers shall display the 
label required under paragraph (a)(1) of this section at each point of 
sale. Point of

[[Page 63861]]

sale is defined to mean a provider's website and any alternate sales 
channels through which the provider's broadband internet access service 
is sold, including a provider-owned retail location, third-party retail 
location, and over the phone. For labels displayed on provider 
websites, the label must be displayed in close proximity to the 
associated advertised service plan. Point of sale also means the time a 
consumer begins investigating and comparing broadband service offerings 
available to them at their location. For alternate sales channels, 
providers must document each instance when it directs a consumer to a 
label and retain such documentation for two years. This requirement 
will be deemed satisfied if, instead, the provider: establishes the 
business practices and processes it will follow in distributing the 
label through alternative sales channels; retains training materials 
and related business practice documentation for two years; and provides 
such information to the Commission upon request, within thirty days. 
Point of sale for purposes of the E-Rate and Rural Health Care programs 
is defined as the time a service provider submits its bid to a program 
participant. Providers participating in the E-Rate and Rural Health 
Care programs must provide their labels to program participants when 
they submit their bids to participants. Broadband internet access 
service providers that offer online account portals to their customers 
shall also make each customer's label easily accessible to the customer 
in such portals.
* * * * *
    (b) Broadband internet access service is a mass-market retail 
service by wire or radio that provides the capability to transmit data 
to and receive data from all or substantially all internet endpoints, 
including any capabilities that are incidental to and enable the 
operation of the communications service, but excluding dial-up internet 
access service. This term also encompasses any service that the 
Commission finds to be providing a functional equivalent of the service 
described in the previous sentence or that is used to evade the 
protections set forth in this part. For purposes of paragraphs (a)(1) 
through (6) of this section, ``mass-market'' services exclude service 
offerings customized for the customer through individually negotiated 
agreements even when the services are supported by federal universal 
service support.
* * * * *

[FR Doc. 2023-20115 Filed 9-15-23; 8:45 am]
BILLING CODE 6712-01-P