FCC Privacy Item May Nix Mandatory Arbitration

Clyburn, Franken team up on two-front assault on clauses

Democratic FCC commissioner Mignon Clyburn is signaling that the broadband privacy item coming up for a vote this week (Oct. 27) could include restrictions on mandatory arbitration clauses.

Clyburn and Sen. Al Franken (D-Minn.) say they are launching a two-front offensive against mandatory arbitration clauses in telecom contracts, at least to start, and then other communications contracts.

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That came in a dual bylined opinion piece in Time online over the weekend (it was published Oct. 23).

The clauses require private arbitration of disputes, which would preclude both individual and class action suits. The Comcast agreement, for one, does include an opportunity to decline that mandatory arbitration provision, though a sub has to do that in writing within 30 days of signing up.

"If the issue of mandatory arbitration remains just another little-known way for corporations to take advantage of the little guy, it’ll be impossible to stop them," said Clyburn and Franken. "But if we raise awareness about this quiet threat to our rights and raise our voices in support of eliminating this unfair practice once and for all, we can strike a blow for justice and protect every American who goes online—which is pretty much all of us."

At the end of the opinion piece, Clyburn said she was "leading the charge for a regulatory crackdown this month." Franken signaled he would do the same on the Hill.

Asked what Clyburn meant, an aide referred to her remarks at a policy forum last week, when she said "the tide is turning against these consumer-unfriendly provisions," adding "the idea is teed up in our work on broadband privacy, and should be adopted first, for consumer broadband, and then, for all services sold to consumers under the FCC’s jurisdiction, where we have the legal authority to do so.”

An FCC source said they understood that prohibiting such clauses if consumers have an issue over their privacy protections—breaches that could have been averted or sharing information that should not be shared with third parties—was expected to be part of the broadband privacy item as commissioners work on their last-minute "asks" and tweaks, saying: "It's in there."

The chairman will need Clyburn's vote for approval, since the Republicans have issues with the item, including making web browsing and app history sensitive data subject to opt-in consumer consent and the disparity between that and the treatment of user info by edge providers.

Clyburn was the driving force behind an item adopted last month to prevent some anticompetitive programming contract provisions.

Franken has made online privacy and data use one of his signature issues and suggested to FCC chairman Tom Wheeler at an FCC oversight hearing in May that while both the edge and ISPs needed watching on the privacy front, he thought the FCC needed to specifically address broadband privacy with new rules.