With the recent approval by the Office of Management and Budget, the stage is set for the Federal Communications Commission’s (FCC) net neutrality rules to be published soon in the Federal Register and to become effective 60 days after publication. A key component of the new rules requires that all broadband Internet service providers (i.e., cable operators, LECs, satellite and wireless) “publicly disclose accurate information regarding the network management practices, performance and commercial terms” of the service to help consumers to make informed choices and for “content, application, service and device providers to develop, market, and maintain Internet offerings.” All broadband providers should begin developing these comprehensive disclosures immediately to ensure compliance as early as November when the rules could take effect.

While the net neutrality rules codify three basic principles widely followed by broadband providers—transparency, no blocking of lawful content/applications and no unreasonable discrimination—the new disclosure rules will require significant attention, including detailed analysis of broadband performance metrics. Our summaries of the FCC’s Dec. 2010 net neutrality decision are available here and here.

Specific disclosure requirements

Performance characteristics

The FCC requires disclosure of a general description of the broadband service and technology. For each level or tier of broadband service offered to customers, the provider must measure and disclose the mean upload and download speeds in megabits per second during the “busy hour” between 7:00 pm and 11:00 pm on weeknights. In addition, broadband providers must disclose the mean round-trip latency during this time period. The suitability of each level of service to particular real-time applications must be described. Wireless provider disclosures are more flexible subject to expected additional FCC guidance.....