Featured Expert Contributor, First Amendment
Jeremy J. Broggi is a partner, and R. Shane Roberts, Jr. is an associate, with Wiley Rein LLP in Washington, DC.
Most consumers are well acquainted with the “Nutrition Facts” label that appears on packaged foods as required by the U.S. Food and Drug Administration. If the Federal Communications Commission has its way, consumers may soon become acquainted with a similar label pertaining to broadband internet access service. Under the FCC’s proposal,1 broadband internet access service providers would be required to display, at the point of sale, labels intended to disclose certain information about prices, introductory rates, data allowances, broadband speeds, and management practices, among other items. Time will tell whether a label like this proves useful to consumers. In the meantime, however, the agency must focus on crafting a final rule that comports with the First Amendment.
The FCC classifies its labeling proposal as a disclosure requirement. As a general matter, the Supreme Court reviews compelled disclosure laws under “strict scrutiny” because, by telling a person what to say, the government necessarily regulates the content of that person’s speech.2 However, the Supreme Court has sometimes applied a more deferential standard to laws that require persons to disclose factual, noncontroversial information in their “commercial speech.” Under that lower standard, the Supreme Court will uphold a compelled disclosure of “purely factual and uncontroversial information about the terms under which . . . services will be available” unless that disclosure is “unjustified or unduly burdensome.”3
These standards can be difficult to apply and the case law often turns on the types of details that the FCC suggests are still under consideration with respect to its broadband disclosure requirement. Unlike packaged foods, broadband internet access service is not sold in a box with room for an unobtrusive label. Accordingly, the FCC has sought comment on how internet service providers should be required to display the labels at various points of sale including retail locations, apps, online platforms, other digital locations, and even telemarketing calls. The specific ways the agency resolves these issues could have a significant impact on the First Amendment analysis.
To illustrate, consider a recent Ninth Circuit decision in American Beverage Association v. San Francisco.4 In that case, the Ninth Circuit held unlawful a San Francisco ordinance that required advertisements for sugar-sweetened beverages to display a health warning occupying at least 20% of the advertisement and set off with a rectangular border. The court held this requirement was “not justified and [was] unduly burdensome” because the government’s health objectives “could be accomplished with a smaller warning.”5 As this reasoning exemplifies, the specifics of the FCC’s point-of-sale display requirements under its final rule may significantly impact the rule’s constitutionality. If the FCC requirement expands to the point that it risks drowning out an internet service provider’s own commercial message, that may create a significant First Amendment problem.
In addition to how its proposed label should be displayed, the FCC is also seeking comment on the information the proposed label should contain. With respect to fixed broadband service, the FCC has proposed that the label contain information on the following: “1) pricing; 2) monthly data allowance; 3) overage charges; 4) equipment fees; 5) other monthly fees; 6) one-time fees; and 7) early termination fees.”6 And with respect to mobile broadband service, the FCC has proposed the following content: “1) pricing; 2) when you exceed data allowance; 3) other included services/features; 4) other monthly fees; 5) one-time fees; 6) service contract terms; 7) early termination fees; and 8) ‘bring your own device’ information.”7 Because the content of these categories may not be self-evident, the FCC has sought comment on the scope of each category. And the FCC has sought comment as to whether any of these categories should be removed, whether any others should be added, and how they should be enforced. The specifics of how these content issues are resolved could have a significant impact on the First Amendment analysis.
For example, an issue that routinely arises in compelled disclosure cases is whether concededly factual information becomes “controversial” when it is given prominence by the government’s disclosure requirement. In other words, by requiring companies to disclose certain information to consumers, the government necessarily highlights the disclosed information and signals to consumers that this information is important and highly relevant to their purchasing decisions. While that is not necessarily a problem from a First Amendment perspective, it can become a problem when either the information itself, or its relevance to purchasing decisions, is a subject of reasonable controversy.
A pair of Second Circuit cases is illustrative. In New York State Restaurant Association v. New York City Board of Health, the Second Circuit held that New York City could constitutionally require restaurants to display uncontroversial “caloric information.”8 But in International Dairy Foods Association v. Amestoy, the Second Circuit held that Vermont could not constitutionally require milk sellers to disclose that milk was produced using cows treated with recombinant Bovine Somatotropin (rBST).9
The court explained that “consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement” where Vermont’s opinion was “controversial” in the sense that the record contained “no scientific evidence from which an objective observer could conclude that rBST has any impact at all on dairy products.”10
It remains to be seen, of course, whether the FCC record will reveal similar issues with respect to the relative prominence the broadband internet access service disclosure rule would grant to particular aspects of broadband service. And, as discussed above, it remains to be seen whether the display requirements will be unduly burdensome. For now, at least, it is a good sign the FCC’s notice of proposed rulemaking recognizes that there may be “First Amendment issues” in play and that the agency has encouraged parties to address these issues in their comments.11
The FCC is scheduled to close the administrative record on March 24, 2022.
- Empowering Broadband Consumers Through Transparency, 87 Fed. Reg. 6827 (Feb. 7, 2022).
- See, e.g., Natl. Inst. of Fam. and Life Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018).
- Zauderer v. Off. of Disciplinary Couns. of Supreme Ct. of Ohio, 471 U.S. 626, 651 (1985).
- 916 F.3d 749 (9th Cir. 2019).
- Id. at 757.
- 87 Fed. Reg. at 6831.
- 87 Fed. Reg. at 6831.
- New York State Restaurant Ass’n v. New York City Board of Health, 556 F.3d 114, 132 (2d Cir. 2009).
- Int’l Dairy Foods Ass’n v. Amestoy, 92 F.3d 67, 69 (2d Cir. 1996).
- See id. at 72–74 (citation omitted); see also Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518, 528–30 (D.C. Cir. 2015).
- 87 Fed. Reg. at 6830.