FCC Open Internet Transparency Rules Go Into Effect January 17th

But Republican FCC Commissioners Say They Won't Enforce It

Ah, politics.

The Federal Communications Commission, as a creature of the federal government, has always been a political body. Appointed by the President of the United States, the five-member FCC can have no more than three members of a single political party, which means that the President always has an FCC with a 3-2 majority in his favor. Thus it has been for the past 8 years under President Obama that we have 3 Democratic commissioners and 2 Republican commissioners.  And it was that particular FCC that, under the leadership of Chairman Tom Wheeler, has played a much more activist role than most commissions in recent memory.

Among the most hotly contested FCC rulings of Obama's term was the Open Internet Order issued by the FCC Open Internet order issued in 2015. Among other provisions, it required ISP's to disclose a number of characteristics about their service known as the "transparency rules".  While the American Cable Association was successful in getting these transparency rules delayed for "small" ISP's (small meaning 100,000 customers), the Commission voted along party lines to not extend that exemption. So that means that the tranparency rules technically go into effect on January 17, 2017.

The FCC introduced the concept of the "Broadband Facts" label as a way for ISP's to satisfy these requirements. Borrowing from the FDA's nutritional labels, the Broadband Facts label shows the information that ISP's are supposed to disclose to customers at the point of sale and on their website. Although the Broadband Facts labeling is OPTIONAL, it may be just as easy a method to meet the transparency rules as any other.

Here's the twist, however. The rules go into effect on January 17th, but four days later the party affiliation of the presidency flips.  Which means that sometime after Inauguration Day, President Trump will flip the FCC to a 3-2 GOP majority.  And with a new party in charge - a party that has been highly critical of Chairman Wheeler's activism - some of the FCC's actions of the past 8 years are likely to be undone.

In December, the two sitting Republican FCC commissioners - Ajit Pai and Michael O’Rielly - confirmed that they have no intention of enforcing those rules in order to give Trump time to put the FCC in Republican hands.

 ​“We want to assure you and your members (ACA and other trade associations) that we would not support any adverse actions against small business providers for supposed non-compliance with the ‘enhanced transparency’ rules after that date, and we will seek to revisit those particular requirements, and the Title II Net Neutrality proceeding more generally, as soon as possible.”

So its unclear whether spending the next two weeks on the tasks needed to meet the rules will be time well spent or not. You may decide to do it anyway in the spirt of openness with your customers, especially if your "label" will show that your services are better than the competitor.