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If You Offer Internet Service, Your Speech is Now Highly Regulated by the FCC

By Jamie Troup on December 1, 2022
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In an order released on November 17, 2022, the FCC dictates in detail the specific words that an Internet service provider must use when communicating with its customers.  The FCC has adopted new rules requiring specific information (referred to as the broadband consumer label) to be displayed at the point of sale when offering mass-market retail Internet access service by wire or radio.  Internet service providers must display unique identifiers for each of their Internet service plans that must consist of their FCC Registration Number followed by 15 alphanumeric characters.  A provider’s broadband consumer label must include the information on the FCC’s label template (see page 6 of the FCC order).  Any customization of the label is prohibited.

Smaller providers will have one year to come into compliance with the new rules after Federal Register publication of OMB’s approval.  A small Internet service provider is one with 100,000 or fewer subscriber lines.  Larger providers have six months to display the broadband consumer labels.

The actual label must appear on the providers primary advertising web page that identifies the available Internet service plans.  The FCC’s order prohibits just an icon or link to the label from a provider’s main website.  The label must also be easily accessible on the consumer’s online account page.

The FCC order requires labels to be accessible to people with disabilities using current accessibility technologies.  Labels must also be displayed in English and any other language used by the provider to advertise or market its Internet service.

Internet service providers must retain and archive for 2 years the labels for all Internet service plans that are no longer available for purchase.  Data to support the accuracy of the old label, such as speed and latency, must also be retained for 2 years.  The archived labels must be provided to existing customers upon request within 30 days.

The information included in the label must also be provided separately in a machine- readable format. The information must be made available in a spreadsheet file format such as .cvs on a provider’s website via a dedicate URL that contains all of a provider’s labels.

The FCC contends that these label requirements do not burden free speech in violation of the First Amendment.  The FCC describes its new rules as disclosure requirements rather than a speech ban that restricts the conveyance of accurate commercial speech.  According to the FCC’s order, the label requirements are not more extensive than necessary to assist customers in purchasing a broadband Internet access service.

Enterprise service offerings and special access services are not subject to the new label requirements.  However, participants in the Connect America Fund, E-rate or Rural Health Care programs must display the broadband consumer labels even though they may define their services as “enterprise” services provided to schools, libraries, and health care providers.

The new label requirements do not apply to airlines, private end user networks such as universities and libraries, coffee shops, bookstores, and other premises where patrons access the Internet, so long as the premises operator does not offer a mass-market retail Internet access service.

In addition to the order adopting the new label rules, the FCC also issued a Further Notice of Proposed Rulemaking seeking comments on whether the FCC should impose additional requirements for broadband consumer labels.  In that rulemaking proceeding, the FCC will consider whether it should require additional pricing information on labels, more speed and latency metrics, service reliability measurements, cybersecurity practices, mandatory foreign languages, and making the labels interactive.  The deadline for filing comments regarding additional label requirements will be 30 days after Federal Register publication.

Need help with your broadband consumer labels or want to file comments to the Further Notice of Proposed Rulemaking?  Contact your friendly Fletcher, Heald & Hildreth attorney to get started today!

Photo of Jamie Troup Jamie Troup

Mr. Troup has more than 30 years of experience in representing corporations in complex commercial litigation, dispute resolution, and government investigations. He has tried cases in state and federal courts, before numerous state and federal regulatory agencies, and in arbitrations. Mr. Troup regularly…

Mr. Troup has more than 30 years of experience in representing corporations in complex commercial litigation, dispute resolution, and government investigations. He has tried cases in state and federal courts, before numerous state and federal regulatory agencies, and in arbitrations. Mr. Troup regularly litigates cases on a broad range of matters, including allegations of breach of contract, business torts, billing disputes, government audits and investigations, constitutional violations, federal preemption, non-payment of tariff rates, ratemaking, network interconnection, appeals of adverse regulatory state and federal agency action, spectrum auctions, and tower zoning.

Representative matters include:

  • Currently prosecuting claims exceeding $200 million against AT&T and Sprint for their failure to fully pay for services rendered. See Iowa Network Services, Inc. v. AT&T Corp., Case No. 3:14-cv-03439-PGS-LHG (D. N.J.) and Iowa Network Services, Inc. v. Sprint Communications Co., Case No. 4:10-cv-00102-JEG-RAW (S.D. Iowa).
  • Obtained dismissal of all claims that the defendant had violated the state and federal antitrust laws by obtaining an exemption for the defendant under the Parker Doctrine. Northwestern Bell Telephone Co. v. Iowa Utilities Board, 477 N.W.2d 678 (Iowa 1991).
  • Secured dismissal of a multimillion dollar nationwide class action and established important precedent holding that a telecommunications carrier is not liable for violations by its customers of the Telephone Consumer Protection Act. Clark v. Avatar Technologies Phl, Inc., Case No. H-13-2777 (S.D. Texas 2014).
  • Successfully defended a telecommunications carrier during a federal government investigation and on-site audit. The defendant was found innocent and no refunds of any amounts were required. In re Sealed Case, No. 98-1474, 1999 U.S. App. LEXIS 11006 (D.C. Cir. 1999); see also, AT&T v. Jefferson Telephone Co., 16 FCC Rcd. 16130 (2001).
  • Represented a telecommunications carrier In a suit against the U.S. Government, and successfully obtained a stay of the FCC’s $10 billion auction of personal communications service (“PCS”) spectrum licenses from the U.S. Court of Appeals on the grounds that the government’s auction rules were discriminatory in violation of the Equal Protection Clause of the U.S. Constitution. Telephone Electronics Corp. v. FCC, Case No. 95-1015 (D.C. Cir. 1995). This case is the first and only court stay of an FCC license auction.
  • Challenged a zoning decision under the federal civil rights laws that had prevented the plaintiff from constructing a tower to provide wireless telecommunications services. A settlement was reached permitting the tower’s construction. Epic Touch Co. v. City of Guymon, Case No. CIV-00-1685 (W.D. Okla. 2000).
  • Obtained for the defendant, the dismissal of a collection action in California federal district court, and following that dismissal, also successfully dismissed the identical complaint that was filed with the FCC. This case established important precedent regarding the respective jurisdictions of the federal courts and federal agencies. U.S. TelePacific Corp. v. Tel-America, Case No. CV-03-8972GAF (CTX) (Cen. D. Cal. 2004); see also, In the Matter of U.S. TelePacific Corp. v. Tel-America of Salt Lake City, Inc., 19 FCC Rcd. 24552 (2004).
  • Prosecuted a lawsuit on behalf of a local telephone company against a long distance carrier for non-payment of telecommunications services that established important precedent regarding application of the Communications Act’s statute of limitations and issue preclusion. Central Scott Telephone Co. v. Teleconnect Long Distance Services and Systems Co., 832 F. Supp. 1317 (S.D. Iowa 1993).
  • Successfully litigated a complaint that resulted in an FCC order prohibiting Southwestern Bell Telephone Company from charging the plaintiff rather than meet point bill other carriers for the transport of SS7 signaling. Elkhart Telephone Co. v. Southwestern Bell Telephone Co., 11 FCC Rcd. 1051 (1995).
  • Procured a jury verdict eliminating all refund claims. Northwest Iowa Telephone Co. v. Qwest, Case No. 04-cv-4053-DEO (N.D. Iowa 2006).
  • Obtained favorable settlements in several billing disputes. See e.g., RCC Holdings, Inc. v. Rural Telephone Service Co., Case No. 04-2311-KHV-DJW (D. Kan. 2004); AT&T v. Reasnor Telephone Co., Case No. 4:07-cv-00117-JEG-RAW (S.D. Iowa 2007); McClure Telephone Co. v. AT&T Communications of Ohio, Inc. and Sprint Communications Co., Case No. 3:08-cv-2800 (N.D. Ohio 2010); Readlyn Telephone Co. v. AT&T Corp., Case No. 08-5449 (GEB) (D. N.J. 2009).
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  • Posted in:
    Communications, Media & Entertainment
  • Blog:
    CommLawBlog
  • Organization:
    Fletcher, Heald & Hildreth, PLC
  • Article: View Original Source

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