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ACA Asks FCC To Speak To Recent State Action On ISPs’ Measurement Of Broadband Speeds

A 50-State Balkanized Scheme Threatens Smaller ISPs With Costly Compliance Burdens

PITTSBURGH, June 19, 2017 - The American Cable Association is asking the Federal Communications Commission to address problems surrounding state-level enforcement actions seeking to impose different or inconsistent broadband speed metrics under state false advertising laws on broadband providers. ACA explained this is a concern given these providers are complying with the FCC's uniform national regime for the measurement and disclosure of actual broadband speeds.

"The FCC should make clear that smaller broadband Internet service providers (ISPs) that act in accordance with the FCC's broadband speed measurement and disclosure requirements are following controlling federal law.  Smaller ISPs need the certainty that reliance on federal rules in consumer-facing statements is a defense to false advertising claims," ACA President and CEO Matthew M. Polka said.

ACA expressed it views in a filing (attached) in support of a petition for Declaratory Ruling filed by USTelecom (USTA) and NCTA - The Internet & Television Association (NCTA) asking the FCC to dispel uncertainty at the state level as to key aspects of its national regime for the measurement and disclosure of actual speeds for broadband ISPs.

The Petition was filed in response to the investigations and enforcement actions against some ISPs, such as the one recently filed by the New York State Attorney General against Time Warner Cable (now Charter), based on unofficial measurement tools and metrics as the basis for alleging false advertising.  The Attorney General is reported to be investigating several other NYS providers, and other state attorneys general are similarly looking into ISP claims about broadband speed.

The FCC's Open Internet Transparency Rule requires broadband ISPs to accurately disclose the "actual" speeds their customers will observe in practice.  The FCC has recognized the difficulties inherent in making a static representation of actual speed.  It has established that broadband ISPs may accurately represent actual broadband speed for purposes of compliance with the agency's Open Internet disclosure obligations by reference to average speed measured during the peak-usage (primetime) period of weekday evenings.  The FCC built in some flexibility for smaller ISPs regarding the methodologies they use for speed measurements to take into account that accurate broadband speed measurement is not a simple activity and is far more complex than simply asking customers to take an online speed test.

ACA member companies would face unmanageable compliance and litigation costs if the standard for accurately measuring and disclosing broadband speeds were different in each of the 50 states than it is at the federal level.  ACA noted that for smaller ISPs,  these burdens can be significant and ultimately threaten national goals of greater broadband deployment as well as the FCC's goal of establishing a unified national approach for ISPs to disclose broadband speed information for the purposes of satisfying its Open Internet Transparency Rule. 

"The FCC should eliminate the problems arising from state-level actions imposing conflicting disclosure standards on ISPs by granting the relief requested in the USTA-NCTA petition," ACA's Polka said.

About the American Cable Association: Based in Pittsburgh, the American Cable Association is a trade organization representing nearly 750 smaller and medium-sized, independent cable companies who provide broadband services for nearly 7 million cable subscribers primarily located in rural and smaller suburban markets across America.  Through active participation in the regulatory and legislative process in Washington, D.C., ACA's members work together to advance the interests of their customers and ensure the future competitiveness and viability of their business.  For more information, visit http://www.americancable.org/

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