The American Cable Association has joined other ISP groups to ask the FCC to clarify via a declaratory ruling that there is a national regime for measuring and disclosing actual broadband speeds and that it precludes states from trying to enforce a "patchwork" of "different and/or inconsistent broadband speed metrics under state false advertising laws."
That came in comments filed by the ACA in support of a petition for declaratory ruling filed last month (May 15) by USTelecom and NCTA–the Internet & Television Association.
"In ACA’s view, there is a clear public policy benefit to the Commission’s approach, which is designed to provide consumers across the country with uniform, accurate, and useful information by requiring BIAS providers to disclose the easily understandable metric of average upload and download speeds at peak-usage periods, while avoiding the imposition of undue costs and burdens on smaller entities," ACA said.
It cited for one an action brought by New York State against then Time Warner Cable (now Charter) it says was "based on unofficial measurement tools." NCTA and USTelecom also cited state efforts aimed at Cablevision and Verizon in the past couple of years, saying "Such state-level actions are causing significant uncertainty, confusion, and potential unwarranted liability.”
ACA says smaller operators are particularly at risk if, having met the FCC's disclosure standards, they have to deal with threats of state action, which may or may not even be legal.
They say they should be able to rely on the FCC's guidance for measuring and reporting actual broadband speeds.
It says the commission "specifically considered the impact of measurement and disclosure requirements for entities large and small," when it combined advisory guidance—"a BIAS provider’s disclosure of average speed measured during the peak-usage (prime time) period of weekday evenings"—with safe harbors for compliance, harbors ACA suggests should be safe from incursions by state entities gunning for them under different standards.
"[I]f New York State prevails in its enforcement action," said ACA, "and other states prevail in similar actions as well, BIAS providers would not only have to continue complying with the Commission’s requirements, but also incur the costs and burdens of additionally ensuring that they were measuring and reporting 'actual' broadband speeds in conformity with the preferences of their states."
NCTA and USTelecom also want the FCC to declare that ISPs have flexibility to comply with its transparency requirements through alternatives to the safe harbor approach.
Comments on the NCTA/USTelecom petition were due June 16 and replies are due July 3.
