Republicans Diss Dual Privacy Regime

Tell FCC they're troubled by ISP privacy oversight

House Republicans are pushing back as the FCC prepares rules on enforcing privacy protections on ISPs, authority that is migrating from the Federal Trade Commission thanks to the FCC's classification of ISPs as telecoms under common carrier regs--there is a carve-out from FTC privacy enforcement for common carriers.

Under Sec. 222 of Title II, which the FCC applied in its Title II order, telecoms have to protect customer confidentiality and can't use or share customer proprietary network information (CPNI) without individuals opting into it.

While the FCC will not apply those rules exactly as they applied to phone companies, it retained the general authority to do something and has said that consumer privacy needs are no less important online when they communicate over a broadband Internet connection.

The FCC has been working on a framework for that enforcement, but according to multiple sources inside the commission nothing has been circulated for a vote.

In a letter to Wheeler dated Oct. 9, Rep. Marsha Blackburn (R-Tenn.), vice chair of the Energy & Commerce Committee, joined by a baker's dozen Republicans including Communications Subcommittee Chair Greg Walden (R-Ore.), said the FCC's potential entry into the privacy regulation space (actually, the FCC oversees CPNI in the traditional video space) was "troubling" for a number of reasons.

They were:

1. The FTC has been the sole Internet privacy regulator.

2. The Title II reclassification was done unilaterally. They said the FCC's "jurisdictional appetite" was problematic.

3. The FCC does not have the technical expertise to regulate privacy, they argue, citing FTC commissioner Joshua Wright's testimony to Congress that the FCC's assumption of privacy oversight would create "obstacles to protecting consumers."

Last spring, the FCC released guidance on how it would wield new broadband consumer privacy powers under Title II. The guidance was mostly general advice to ISPs to protect privacy while the FCC decides exactly what needs protecting and how—the interim period between the Title II-based rules effective date of June 12 and when the FCC decides exactly how to implement privacy obligations given that they decided to not just graft the phone-related rules to broadband.