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Abstract

During the last decade, broadband deployment, speed and utility have increased, allowing the public to engage in new forms of social media, user-generated content, voice and video calling, citizen journalism and accessing audio and video streams supplied by edge providers like Pandora and Netflix. Concurrently, during this same period, concerns over open access and network neutrality have focused on whether broadband service providers may be regulated, ostensibly to which degree may they have control over their networks and face common carrier obligations, even if they do not fall under the classification of telecommunications services . To help clarify these issues, in 2010 the Federal Communications Commission established the “Open Internet Rules” calling for three network management principles centered on antiblocking, nondiscrimination and transparency requirements to apply to broadband providers. Recently, in Verizon v. FCC, the D.C. Circuit Court of Appeals vacated the antiblocking and nondiscriminatory provisions but left the transparency requirements in tact for both fixed and wireless broadband providers. Moving forward, transparency requirements are therefore a central focus within the FCC’s approach to foster an open Internet and appear integral to the future broadband ecosystem. Even outside the network neutrality debate, terms of use agreements and their disclosure play an increasingly important role for social media sites and mobile applications as they typically confer a bundle of rights and legal provisions to providers and users. These arrangements generally take the form of non-negotiated contracts of adhesion as so-called “clickwrap” agreements, which define providers’ relationships with their users. However, these terms of use agreements are only a layer of the Internet and effectively omit how individual users access these particular services through their underlying broadband provider. Through legal and policy analysis, this study answers the following research question: how do the FCC’s suggested transparency and disclosure requirements apply to a broadband provider? The study reviews the FCC’s suggested transparency requirements as set forth thus far in the Open Internet Rules. Under these provisions, broadband providers are required to “publicly disclose accurate information regarding network management practices, performance and commercial terms” to inform consumers and third parties. This study then applies the current understanding of the FCC’s transparency requirements by closely examining Verizon’s terms of use/customer service agreements for both fixed and wireless broadband. These agreements are examined not only for their applicability in terms of how they fit within the FCC’s suggested transparency rules, but also within the overall confines of Section 706 advanced telecommunications capability requirements that are in the public interest. This study concludes by making several suggestions as to how the FCC should approach the transparency and disclosure requirements going forward and calls for a greater incorporation of consumer accessibility, readability, literacy and privacy protections.

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