Major Industry Associations Seek Delayed Privacy Comment Deadline

A broad group of industry associations asked the FCC to delay by 45 days the deadlines for filing comments on the ISP privacy rulemaking. After the Association of National Advertisers (ANA) had asked the agency to extend the comment deadlines 60 days (see 1604130054), industry observers said they didn’t think the FCC was inclined to provide more time (see 1604150075). The U.S. Chamber of Commerce also filed in support of an extension. Wireline Bureau Chief Matt Del Nero is to discuss the NPRM at an FCBA seminar Friday.

The FCC “provides a mere 57 days for initial comments and only an additional 30 days for reply comments for an extremely complex and far-reaching Notice with over 500 questions that has ramifications for the entire online ecosystem -- a significant driver of the U.S. economy,” said the motion, posted in docket 16-106 Thursday. The American Cable Association, CTA, CTIA, the Internet Commerce Coalition, NCTA, USTelecom and the Wireless ISP Association signed the letter.

Contrary to the lone opposition filed to the ANA request by consumer groups, there would be nothing remarkable about the FCC agreeing to provide more time on the NPRM, approved by the FCC 3-2 at its March 31 meeting, the associations said.

“The Notice proposes to establish sweeping and unprecedented privacy, data security, and data breach rules for [broadband] providers that raise difficult and complex legal, technical, and policy issues with broader implications for the complicated Internet ecosystem and online advertising marketplace,” the associations said. “The Commission seeks to impose comprehensive and onerous requirements on a service that never before was subject to FCC privacy, data security, or data breach rules, let alone a set of rules as prescriptive and burdensome as those proposed in the Notice.” The FCC didn't comment.

The "mere 57 days" cited in the petition “is 27 days longer than normally provided," said Meredith Rose, Public Knowledge staff attorney. “It's a huge amount of time for this kind of procedure. This is a blatant stall tactic.” This "is just a delay tactic,” said Jeff Chester, Center for Digital Democracy executive director. “They know their business practices and don't need time at all. They just want to kill consumer privacy safeguards for ISPs.”

The FCC did extend the comment deadline on the set-top box NPRM, said Richard Bennett, free-market blogger and network architect. “The argument for extending the deadline in the privacy matter is equally strong,” he said. “The agency has exhibited a tendency to go off half-cocked recently, offering proposals that are poorly fleshed out and inconsistent with technical realities. This becomes especially troublesome when multiple such actions are pending at the same time.” The set-top extension was seven days (see 1603180041).

Other industry observers said that since the privacy ISP is a clear priority for FCC Chairman Tom Wheeler, they doubted the FCC would offer much additional time for comments. A former FCC spectrum official saw only a 35 percent chance the deadline would be extended, and probably not for very long.

“There always a chance that the commission will do the right thing, and I’m an optimist,” said Randolph May, president of the Free State Foundation. “I’m going to go out on a limb and predict the commission will grant a meaningful extension. On the merits, an extension is certainly warranted because it would be difficult to make the case that this is not a very complex proceeding involving a wide range of participants who don’t often participate in FCC proceedings. It’s also hard to argue that there is any need for ‘emergency’ action that mitigates against a delay of a few extra weeks."

TechFreedom President Berin Szoka wrote a blog post saying there are good legal reasons to delay the comment deadline, starting with the recognition that the net neutrality rules could fail in court. But Szoka told us an extension is unlikely. “Wheeler doesn't care,” he said. The group filed in support of ANA's request.

The ANA filing also got support from the Chamber and a coalition of advertising and marketing associations. “From a process standpoint, more time is needed to gather input on the extraordinary number of requests for comment from the many thousands of trade association members represented by the undersigned,” the filing said. “From a substantive standpoint, additional time is necessary to evaluate the specific terms of, and the legal authority supporting, an NPRM that was drafted and adopted without direction from Congress but will have a policy impact well-beyond its purported limited application to the telecommunications sector.” The American Advertising Federation, American Association of Advertising Agencies, Association of National Advertisers, Direct Marketing Association, Electronic Retailing Association, Electronic Transactions Association, Interactive Advertising Bureau, National Business Coalition on E-Commerce and Privacy and Network Advertising Initiative also signed the filing.