On June 20, 2023, the Federal Communications Commission (“FCC”) released a Notice of Proposed Rulemaking (“NPRM”) to require cable operators and direct broadcast satellite (“DBS”) providers to display an “all-in” price for their video programming services in their billing and marketing materials.  The White House issued a press release that same day expressing its support for the proposed new rules, noting that the proposal is consistent with the Administration’s efforts “to crack down on junk fees in order to increase transparency.” 

Brief Background

Federal law authorizes the FCC to adopt public interest regulations for DBS and directs the agency to adopt cable customer service requirements.  In 2019, Congress passed the Television Viewer Protection Act of 2019 (“TVPA”), which revised the Communications Act to add a new section relating to, among other things, greater transparency in subscribers’ bills.  In 2021, the Media Bureau sought comment on what steps multichannel video programming providers had taken to implement the TVPA requirements and whether those steps furthered Congress’s goal of protecting consumers who purchased video programming service.  According to the FCC, the practice of charging consumers “fees” (e.g., regional sports programming fees) that are actually charges for paid video programming services has continued since the adoption of the TVPA.

Proposed Rules and Questions

The NPRM seeks comments on the following four topics: (1) the specifics of the proposal, (2) existing requirements related to truth-in-billing, (3) marketplace practices regarding advertising and billing, and (4) the FCC’s legal authority to adopt the proposal.

  • Proposal details.  The FCC’s proposed rule would require cable operators and DBS to provide an “aggregate cost” (i.e., the total cost of all video programming services, without additional taxes and charges unrelated to video programming) as a “prominent” single line item on subscribers’ bills and all promotional materials that advertise price.  The proposed rule would also permit cable operators and DBS providers to complement the aggregate figure with an itemized explanation.  The FCC requests comment on various issues, including:  whether the term “prominent” is specific enough or requires more detail; whether providers that bundle video programming services with other services are able to readily identify the amount of the bill attributable to video programming; and whether the FCC should consider adopting different requirements or exempting certain materials based on their size.
  • Existing requirements.  The FCC seeks comment on whether any existing laws and protections regulate advertising and billing practices that involve charges for video programming that are listed separately on bills (e.g. taxes, fees, and surcharges).  Specifically, the FCC notes that there could be state or local requirements and ask whether any franchising authorities have regulations or franchise agreement terms about these types of billing and advertising practices.
  • Marketplace practices.  The FCC seeks comment on industry practices regarding service pricing categorization.  For example, the FCC asks if there is a business purpose for characterizing a service rate increase as a tax, fee, or surcharge.
  • Legal authority.  The FCC tentatively concludes that it has legal authority to implement the proposed rule and, moreover, that the proposed rule is consistent with the First Amendment.  The FCC requests comment on its tentative conclusion and legal analysis.

Stakeholders interested in commenting on the proposed rule have 60 days from the date that the NPRM is published in the Federal Register (date TBD). 

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Photo of Matthew DelNero Matthew DelNero

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy…

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy challenges.

Matt serves as co-chair of Covington’s Technology & Communications Regulation (“TechComm”) Practice Group and co-chair of the firm’s Diversity, Equity, & Inclusion initiative.

Matt advises clients on the full range of issues impacting telecommunications, technology and media providers today, including:

  • Structuring and securing FCC and other regulatory approvals for media and telecommunications transactions.
  • Obtaining approval for foreign investment in broadcasters and telecommunications providers.
  • Broadband funding under federal and state programs, including under the FCC’s Universal Service Fund (USF) and NTIA’s Broadband Equity, Access, and Deployment (BEAD) Program.
  • Representing broadcasters, media networks, and other content owners and producers on both existing and proposed FCC regulations and policies.
  • FCC enforcement actions and inquiries.
  • Online video accessibility, including under the Communications and Video Accessibility Act (CVAA) and Americans with Disabilities Act (ADA).
  • Equipment authorizations for IoT and other devices.
  • Spectrum policy and auctions, including for 5G.
  • Privacy and data protection, with a focus on telecommunications and broadband providers.

Matt also maintains an active pro bono practice representing LGBTQ+ and other asylum seekers, as well as veterans petitioning for discharge upgrades—including discharges under ‘Don’t Ask, Don’t Tell’ and predecessor policies that targeted LGBTQ+ servicemembers.

Prior to rejoining Covington in January 2017, Matt served as Chief of the FCC’s Wireline Competition Bureau. He played a leading role in development of policies around net neutrality, broadband privacy, and broadband deployment and affordability under the federal Universal Service Fund (USF).

Chambers USA ranks Matt within “Band 1” in his field and reports that he is a “go-to attorney for complex matters before the FCC and other federal agencies, drawing on impressive former government experience.” It also quotes clients who praise him as “an outstanding regulatory lawyer…[who] understands the intersection between what’s important for the client’s operations and how the law impacts those operations.”

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Photo of Andrew Longhi Andrew Longhi

Andrew Longhi advises national and multinational companies across industries on a wide range of regulatory, compliance, and enforcement matters involving data privacy, telecommunications, and emerging technologies.

Andrew’s practice focuses on advising clients on how to navigate the rapidly evolving legal landscape of state…

Andrew Longhi advises national and multinational companies across industries on a wide range of regulatory, compliance, and enforcement matters involving data privacy, telecommunications, and emerging technologies.

Andrew’s practice focuses on advising clients on how to navigate the rapidly evolving legal landscape of state, federal, and international data protection laws. He proactively counsels clients on the substantive requirements introduced by new laws and shifting enforcement priorities. In particular, Andrew routinely supports clients in their efforts to launch new products and services that implicate the laws governing the use of data, connected devices, biometrics, and telephone and email marketing.

Andrew assesses privacy and cybersecurity risk as a part of diligence in complex corporate transactions where personal data is a key asset or data processing issues are otherwise material. He also provides guidance on generative AI issues, including privacy, Section 230, age-gating, product liability, and litigation risk, and has drafted standards and guidelines for large-language machine-learning models to follow. Andrew focuses on providing risk-based guidance that can keep pace with evolving legal frameworks.

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Photo of Jorge Ortiz Jorge Ortiz

Jorge Ortiz is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and the Technology and Communications Regulation Practice Groups.

Jorge advises clients on a broad range of privacy and cybersecurity issues, including topics related to…

Jorge Ortiz is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and the Technology and Communications Regulation Practice Groups.

Jorge advises clients on a broad range of privacy and cybersecurity issues, including topics related to privacy policies and compliance obligations under U.S. state privacy regulations like the California Consumer Privacy Act.

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