Speed and Latency Testing
Does the FCC specify a particular testing process or methodology for determining speeds and latency required on broadband labels?
While the FCC references a few different methodologies in the Order, such as the Measuring Broadband America (MBA) program or consumer speed test data, a single testing methodology is not defined.
Where should you test to?
The FCC does not specify a testing location. However, JSI recommends testing to a Speedtest server on the Service Provider Internal Network. Ideally, the server meets these criteria:
- Publicly available Ookla Speedtest server
- High performance and connected at 10 Gbps or better
- Connected to the Service Provider core without any bottlenecks such as a firewall
Where should you test from?
Because the labeling requirements are focused on the speeds service providers deliver to customers, JSI recommends testing from broadband access equipment that provides service to subscribers. The testing should be done in a way that mimics subscriber experience so that the results are replicable by subscribers doing the same test.
How is this testing different from Connect America Fund (CAF) testing?
CAF testing is focused on testing to FCC-designated Internet exchange points or specific carriers. The FCC is not requiring applying the same requirements to broadband label testing at this time. This is helpful because it allows testing to be performed under a service provider’s control, and without introducing uncontrollable variables into the testing.
What if you run into issues when testing?
Since testing should be performed under subscriber conditions, any issues discovered can be resolved through corrective measures until test results consistently match what is advertised on the label. This may involve troubleshooting Speedtest server performance, subscriber profiles, etc., until good results are achieved. This process aligns with the labels’ goal: to present customers with a label that represents the speed they should expect to receive.
How can JSI help you with compliance?
JSI offers a full suite of compliance solutions designed to assist with establishing a testing plan and a standard form to document the tests. JSI can also assist with the engineering and deployment of a local Speedtest server if needed.
What broadband plans must be labeled?
Under the proposed FCC rules, you must have a label for each standalone residential and business broadband, standardized, mass-market service plan offering (i.e., an offering not bundled with other services such as multichannel video or voice). You do not need to make a label for bundled plans where you offer broadband Internet access service bundled with other services. You may note your bundled plans via a link in the “click here” section of the label where you describe other discounts.
Please note that enterprise service offerings or special access services are not “mass-market retail services” and are exempted from the label requirement.
- Enterprise service offerings are typically offered to larger organizations and government customers through customized or individually negotiated terms of their service contracts. The provider or the reseller is not providing a standardized, mass-market service.
- Special access is the non-switched transport of voice and data over a dedicated line between two or more designated points.
Do you have to create labels for the Affordable Connectivity Program (ACP), E-Rate, and Rural Health Program (RHC)?
Regarding ACP, providers must indicate whether they participate in the ACP and include a link to information about the ACP on their broadband label. For E-Rate and RHC Program, participants must provide a broadband label along with any competitive bids submitted during the competitive bidding process.
Can you have language like “speeds up to” or “typical speed and latency” on the label?
Providers must display “typical upload and download speeds and typical latency” on the labels.
Do you have to read each label if a customer orders service over the phone?
Concerning alternate sales channels, if you can ensure the customer has access to an Internet connection at home, through their mobile device, or at the retail store, you can provide your weblink or send a QR code. Providing the label over the phone is just another option. If a call center staff or sales rep decides to provide the label over the phone, they must recite the entire label for each plan to the potential customer. However, if you can’t ensure the customer has an Internet connection at home or in the retail location, you must make the label available in hard copy. Also, it is important to note that you must document each instance when you are directing a customer to a label and retain the documentation for two years.
If you have an early termination fee, do you show the maximum amount on the label since it will depend on when a customer cancels?
If your early termination fee is prorated based on the time the customer cancels service, you may note that in the label, along with the maximum early termination fee, and include a link to more details about your early termination policies.
Legal and Compliance Concerns
Does the FCC address any concerns with litigation in the form of class action lawsuits if labels are not accurate?
The FCC does not address any concerns with litigation in the form of class action lawsuits if the labels are inaccurate in the order. However, the FCC will use its existing transparency enforcement procedures, forfeiture authority, and other remedies to deter noncompliance and to hold accountable providers that do not comply with the label requirements.  The FCC also notes that requiring providers to archive all labels they display will allow the FCC to obtain labels and investigate the accuracy of the labels faster and more efficiently.
Additionally, labels that include the same information in a conspicuous location and are presented in the same format across providers will enable customers to hold those providers accountable by making inquiries and filing complaints should the services they receive or the prices they pay not match what providers display in the labels. The FCC intends to process and serve informal consumer complaints regarding broadband labels as vigorously as other informal complaints. The labels will have a link to an FCC Glossary page containing information for customers on filing complaints with the FCC.
 The Transparency Rule requires that providers’ information about their broadband service must be accurate and truthful. The FCC monitors how well providers disclose the broadband speed they give consumers and at what price.
What steps should be taken to record compliance?
When will the new rules become enforceable? Are there specific compliance dates for the proposed labeling requirements?
The rules are currently under review with the Office of Management and Budget (OMB). It is expected that once approved by OMB, the FCC will submit a proposed collection for review and final approval by OMB with a 30-day federal register notice.
JSI anticipates the final order to be approved this Summer (2023), with an enacted compliance date to start the clock. Once the official date is in place, providers with less than 100,000 subscribers will have up to one year to comply, while providers with 100,000 subscribers or more will have up to 6 months to comply.
The FCC is concerned about providers who make false, misleading, or deceptive statements about their services. Providers violating the Transparency Rule harm consumers and may be subject to enforcement action, potentially including monetary penalties prescribed under the Communications Act. Broadband label providers can face a $10,000 fine for each violation or each day of a continuing violation, not exceeding $75,000 for any single act or failure to act. 47 U.S.C. § 503(b)(2)(D).
JSI is actively monitoring this item and will keep you updated on the final approvals and important dates for compliance.
Please note that, as indicated herein, the FCC’s broadband labeling rules are not yet in effect and may still be subject to change by the Commission or other Federal agencies before adoption. Accordingly, the information provided in the FAQ is for general informational purposes only and is based on the most recent information available to the public. Providers interested in compliance requirements specific to actual broadband services may contact JSI for individualized assistance.