Pai Seeks Clarity on Broadband Privacy

Circulates item on state of existing protections post-Congressional review

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FCC chairman Ajit Pai has circulated an item for a vote that provides guidance on the broadband privacy rules that were in effect before its 2016 privacy order, according to an agency source. That is opposed to a brand new framework for rules.

That broadband privacy order, adopted last fall by a Democratic majority under former chairman Tom Wheeler and against the dissents of the current Republican majority, was invalidated earlier this year by a Congressional Review Act (CRA) resolution, essentially with the blessing of Pai and acting Federal Trade Commission chair Maureen Ohlhausen.

The CRA did not roll back FCC authority over internet-service provider broadband privacy, which it has had since the 2015 Open Internet order classified web access as a common-carrier service exempt from FTC oversight. But just what authority the FCC had has been a bit unclear since the agency’s common-carrier privacy regulations are tailored to phone service, stemming from an effort to prevent telcos from using information about who was changing to another carrier to try and incentivize them not to switch.

Following that Open Internet order, the FCC had teamed with the FTC on a memorandum of understanding outlining how — in a generally worded document — they could, together, protect broadband privacy going forward.

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The FCC source would not provide any more information on just how the FCC would clarify its existing authority over broadband privacy. The commission does, however, have authority over phone privacy under Section 222 of Title II, something that has been cited as possible authority over broadband consumer info as well.

An industry source suggested it was a bit odd that the chairman would put a spotlight on the issue in the item — which is noticed on the FCC’s online circulation list — when the news cycle has calmed down on privacy, suggesting it could restart a cycle where the FCC would be criticized for rules that are insufficient.

Pai ultimately hopes to turn broadband privacy enforcement back over to the FTC by rolling back the Title II common carrier classification of ISPs. The FCC, under Wheeler, deeded itself that authority in 2015.