Privacy-Rule Rollback Letters Flood FCC

Commenters signal that regulations unfairly favor edge providers

Why This Matters

ISPs will have ammo in their fight vs. broadband privacy rules, given the importance placed on FCC comments.

Related: Trump Mandates Agency Reorg Review

Activist groups have always contended that the flood of network-neutrality comments at the FCC helped turn the commission toward Title II reclassification of Internet-service providers and its associated broadband privacy rules. Now, ISPs are hoping that same belief holds true on another issue.

Over the past week or so, the FCC’s broadband privacy docket has been filled with form letters in support of agency chairman Ajit Pai’s decision to stay the implementation of the data-security portion of the rules (which would have gone into effect March 2), and for vacating the order in its entirety, which the chairman is also likely to do unless Congress beats him to it.

ISPs are pushing for both of those outcomes.

The FCC tracks the most active dockets in the previous 30 days, and broadband privacy tops the list. A check of the docket unearthed hundreds of submissions of the same form letter, which backs ISPs and takes aim at edge providers such as Google and Facebook.

“The Obama FCC’s so-called privacy order stifles innovation and harms our economy and Internet users while rewarding politically connected tech giants,” the letter read (see graphic). “The order imposes onerous requirements on one set of Internet companies while exempting large tech companies that have much more access to consumer data.”

Those large companies would be the Googles and Facebooks of the Web world, whose data collection and sharing— overseen by the Federal Trade Commission—are not under a consumer opt-in regime.

That would, however, be the case for ISPs when the FCC’s broadband privacy order’s opt-in regime for third-party sharing and marketing takes effect at year-end—unless there’s action by the current commission to revamp it.

In addition to Pai’s efforts to remake the order, from which he dissented last year, Republicans have launched an effort to use the Congressional Review Act to roll back the regulations. It could come up for a Senate vote next week, said one source following its progress.

That legislative maneuver would allow a simple majority in Congress to overrule any recent regulation by a federal agency—in this case, any regulation approved since May of last year. The FCC in October adopted its broadband privacy order, which requires ISPs to get their subscribers’ permission to share Web-surfing and app-use histories and other “sensitive” data with third parties for marketing or other purposes.

The FCC, led at the time by Democratic chairman Tom Wheeler, said the order was based on transparency, consumer choice and data security. The FTC has a sensitive data category, but it does not include third-party marketing, which ISPs point out is a big factor in a lot of Web content remaining free.

The FCC vote also establishes deadlines for breach notifications, requires clear notice to customers of what data is being collected and how it is being used and prevents “take-it- or-leave-it” offers that condition service on allowing data sharing. The take-it-or-leave-it portion of the rules has already gone into effect, and was not affected by the FCC’s stay of the data-security portion, which concerned ISPs’ requirement to take reasonable measures to secure the information.