FNPRM Looming, ISPs Urge FCC To Harmonize Broadband Privacy With FTC

Any FCC broadband privacy rules should be consistent with the FTC approach, which is “flexible” and “time-tested,” said seven communications industry groups as a related rulemaking looms. The FTC framework is “grounded in prohibiting unfairness and deception” and protects consumer privacy while accommodating innovative models in a dynamic market, said the American Cable Association, Competitive Carriers Association, CTA, CTIA, Internet Commerce Coalition, NCTA and USTelecom, which sent a letter to FCC Chairman Tom Wheeler Thursday. Three weeks ago, consumer-oriented groups urged the FCC to start a broadband privacy rulemaking, in what observers said was a likely prelude to one (see 1601190077). The FCC could consider a broadband privacy Further NPRM at its March 31 meeting, informed sources told us Thursday.

Reaction to the ISP groups varied greatly. “Chairman Wheeler is eager to hear from all stakeholders on the right path forward for ensuring consumer privacy on broadband networks,” an FCC spokeswoman said. Commissioner Mike O'Rielly, through an aide, said, “The concerns of broadband providers and technology firms are certainly well-founded, given the comments made by proponents so far about the scope of the Commission’s ambitions for privacy regulation. However, I do not hold out much hope that the same people who saddled the Internet with toxic net neutrality burdens have any intent to create privacy rules completely consistent with the FTC’s privacy structure or precedent.”

“This is Pinocchio meets privacy,” said Jeff Chester, executive director of the Center for Digital Democracy, one of the groups signing the consumer group letter. “The people who signed this [industry] letter are exactly like the tobacco lobbyists who 20 years ago denied cigarettes cause cancer. If the Oscar hasn’t been announced for best screenplay, they should get it,” he said. “Everyone knows the FTC doesn’t have the regulatory authority to really protect consumer privacy. This is an attempt by the phone and cable giants to stop the FCC from protecting the privacy of broadband consumers." He added: "They're extracting massive amounts of information on individuals. They're doing what everybody else is doing, but they're the dominant broadband providers."

TechFreedom said the FCC “robbed” FTC jurisdiction by reclassifying broadband access under Title II of the Communications Act, which put broadband providers off-limits to FTC enforcement as common carriers. “All tech companies should be held to the same standards on consumer privacy, whether they offer Internet access, online services, or devices,” said Berin Szoka, president of the group, in a statement. “The FCC should adopt the FTC’s standards for unfairness and deception across the board.” Chester said the FTC had only put a "small dent in the massive privacy problem" before the FCC's Title II broadband reclassification.

Net neutrality skeptic Christopher Yoo called the letter a “step in the right direction” because “both agencies face legal restrictions that prevent them from reaching the entire Internet industry.” Without FTC and FCC privacy harmonization, companies will face inconsistent standards and increasingly difficult jurisdictional questions, said Yoo, professor of law, engineering and communications at the University of Pennsylvania. “Inconsistent privacy policy also risks driving technological choices in directions that have nothing to do with innovation and benefits to consumers. The fact that the trade associations signing the letter represent such a broad range of the key industry players makes it quite likely that the FCC will take the letter quite seriously,” he said.

The industry groups said they're committed to protecting consumer privacy, while ensuring they meet consumer expectations for “new innovations that enhance their experience.” They noted the FCC is considering how Section 222 of the act, “which governs customer proprietary network information (CPNI), should apply to broadband Internet access service.” But the applicability of that and other Title II sections is being challenged in court, they said. “If the Commission nonetheless moves forward in this space, consumers would be best served by an approach to privacy and data security for CPNI that is harmonized with the FTC’s established privacy protection framework.”

“It is important to maintain a consistent privacy framework for the Internet. Such an approach will protect consumers and avoid entity-based regulation that would create consumer confusion and stifle innovation,” they said. “Consumers expect their data will be subject to consistent privacy standards based upon the sensitivity of the information and how it is used regardless of which entity in the Internet ecosystem uses that data.”

Free State Foundation President Randolph May welcomed the letter, and noted he has long advocated that all privacy regulation of ISPs be subject to the FTC’s regime. “I hope the courts ultimately hold that the FCC's Internet power grab is unlawful. But, in the meantime, I certainly agree ... that any new regulations adopted by the Commission should be as consistent as possible with the FTC's framework,” he said in a statement. “Given the FTC's experience and expertise and general privacy jurisdiction, there is no reason for various providers of Internet services and applications, regardless of how they are classified under the archaic telecom regime, to be subject to varying requirements.”

“It’s more than a little ironic that the industry released this letter praising the FTC’s privacy chops, while simultaneously grumbling at Congress and elsewhere that the FTC is too weak on privacy issues to sufficiently protect consumer data if the FCC opens up cable set top boxes," said Meredith Rose, Public Knowledge staff attorney. "We think things are moving along at the FCC and that they’re currently considering how best to tackle the topic. We're hopeful that a privacy proceeding will be on the agenda for the March meeting.”