CDT Comments: FCC Cannot Rule That ISPs May Advertise False Broadband Speeds

Last week, CDT filed comments urging the Federal Communications Commission (FCC) not to gut its own authority or limit the authority of state governments to prohibit false advertising by internet service providers. A petition by NCTA and USTelecom asked the FCC to declare that broadband providers can advertise speeds well above the actual speeds customers would receive from their broadband service, as long as the providers disclose the actual speeds on their websites. Choosing among plans offered by broadband providers can be confusing, and it’s critical that consumers have accurate information at all times so that they can make informed decisions about purchasing and using internet service plans.

Choosing among plans offered by broadband providers can be confusing, and it’s critical that consumers have accurate information at all times so that they can make informed decisions about purchasing and using internet service plans.

In February, the New York Attorney General sued Charter Communications for, among other things, advertising broadband speeds that the company knew its customers would never experience. The FCC acknowledged the problem of advertising inaccurate speeds when it adopted the Transparency Rule in its 2010 and 2015 Open Internet Orders. The Transparency Rule requires providers to disclose sufficient, relevant and accurate information in such a way that allows consumers to “make informed choices regarding the use of [BIAS] services.” In New York, as in many other states, consumer protection laws prohibit false advertising and other deceptive business practices. These protections were designed to prevent companies from making false claims about their products and services, and they complement federal regulations like the Transparency Rule.

In their petition, USTelecom and NCTA seek to exploit a safe harbor provision in the Transparency Rule to preempt the FCC and states from taking action against the advertisement of false speeds. But, as our comments explain and as the FCC has stated, the safe harbor does not protect providers that make false statements about their broadband speeds, and the FCC should not reverse course by declaring that it does. We argue that the FCC and state governments must maintain their comprehensive authority to protect consumers from false and deceptive advertising.