FCC Issues First Guidance on Net Neutrality Disclosure Rules

The five-part notice allows the 13 providers currently participating in the SamKnows broadband speed tests to use test results “as a sufficient representation of the actual performance their customers can expect.” ISPs not involved in the SamKnows project can “use the methodology developed through the project ... to measure the actual performance of their broadband offerings,” the commission said. The raw data from the SamKnows project is expected to be released within the next few days, two telco officials said. Thus far, they said companies have found that tests are meeting or exceeding their advertised speeds.

Mobile broadband companies can disclose “the results of their own or third-party testing” as long as they “have access to reliable information on network performance,” the notice said. “We encourage fixed and mobile providers to disclose the source of their performance measurements and the underlying methodology used to evaluate performance,” the notice said.

Rep. Marsha Blackburn, R-Tenn., sees the guidance as an admission that the original net neutrality order was inadequate, her spokesman said. “There is no better example of how the new ‘open internet’ rules create uncertainty and higher costs than the fact that the FCC enforcement bureau had to issue additional guidance today,” he said by email. “Net Neutrality looks more and more like one of those poorly defined apps that crashes your mobile device. No amount of programming patches from the FCC can make it better."

But Rep. Doris Matsui, D-Calif., is “very encouraged that the FCC is moving forward to implement the transparency rule of the Open Internet Order,” she said. “The transparency requirement is essential for providing consumers and innovators with the information to make informed decisions.” A House Democratic aide said, “The FCC took a good step today, and settling for anything less than a completely free, open Internet would stifle future innovation and should be considered a failure."

Addressing companies’ concerns that they may be subject to disclosure rules “that they may not be aware are subject to the rules,” the commission said only paragraphs 56 and 98 of the net neutrality order applies -- for now. Paragraph 56 calls for “flexibility” in implementing the disclosure rules, but expects that “effective disclosures will likely include some or all” notice, in “plain language,” covering topics such as congestion management, application-specific behavior, device attachment rules, security, service description, impact of specialized services, pricing, privacy policies and redress options. Paragraph 98 applies the rules to wireless providers and requires them “to disclose their third-party device and application certification procedures, if any; to clearly explain the criteria for any restrictions on use of their network; and to expeditiously inform device and application providers of any decisions to deny access to the network or of a failure to approve their particular devices or applications.” These conditions may change, Thursday’s notice said. “As noted in the Open Internet Order, the Commission may determine in the future that different disclosures by broadband providers are appropriate at that time, possibly in connection with the Consumer Information and Disclosure proceeding."

Thursday’s notice also said that it won’t be necessary to make a second set of disclosures “for the specific benefit of edge providers.” As long as providers give out “sufficiently detailed information regarding network management practices to enable a technologically sophisticated Internet user to understand how such network management practices work,” there won’t be a need for separate disclosures, the order said. “This in no way alters the obligation of mobile broadband providers to disclose their certification and approval processes for devices and applications, if any."

Broadband companies are expected “to use sound judgment in deciding whether it is necessary and appropriate to disclose particular security measures,” the notice said. “In making that determination, the touchstone is that providers must disclose information ’sufficient for consumers to make informed choices regarding use of such services and for content application, services and for content, application, service, and device providers to develop, market and maintain Internet offerings.'” It quoted from paragraph 59 of the neutrality order.

A divided commission adopted the order last winter, but it has remained in limbo ever since. Industry response to Thursday’s notice was muted, with only the American Cable Association issuing a statement by our deadline. The association said it was happy with Thursday’s notice. “ACA was concerned that the data collection burdens associated with the Open Internet disclosure rule had been underestimated, particularly for smaller broadband providers, and lacked specificity in key respects,” the group said. Verizon, which has already challenged the neutrality order in court, declined comment Thursday.