Waxman: FCC Broadband Privacy Proposal Would Harm Consumers

Advises pivot to FTC tailored approach

Former Democratic House Energy & Commerce Committee chairman Henry Waxman of California weighed in against FCC chairman Tom Wheeler's broadband privacy proposal in an op ed in The Hill Tuesday, saying its "sweeping opt-in regime could undermine beneficial uses of data and result in "tangible and competitive consumer harm."

Waxman now lobbies for tech and broadband companies and is scheduled to participate in a conference call with reporters Wednesday, organized by NCTA: The Internet & Television Association, on the privacy rules along with former FTC chair Jon Leibowitz, who has also been pushing the FCC to change course on privacy to the FCC's "privacy by design" approach.

Waxman pointed out he was a big supporter of network neutrality but said one unfortunate consequence of reclassifying broadband under Title II was giving the FCC broadband privacy authority while edge privacy authority—Google, Yahoo!—remained under the Federal Trade Commission jurisdiction. Google this week sent the FCC a letter with very similar concerns to those of Waxman, saying the FCC should harmonize with FTC enforcement.

The problem with the FCC’s action isn’t its assertion of regulatory authority, he said, but its departure from the FTC’s effective approach that pegs the level of privacy protection to the sensitivity of consumer data.

He advised the FCC to adopt the FTC's approach of tailoring the treatment of users' online information to its sensitivity rather than "a sweeping default opt-in regime that would undermine beneficial uses of data most consumers expect and are comfortable with," like "targeting ads or offering discounts to existing customers – based on the customer’s implied consent or if consumers are given appropriate disclosures and the chance to 'opt out.'"

Waxman said he thought Wheeler was coming around to the FTC point of view, citing the chairman's statement to a Senate Commerce Committee oversight hearing that he was "embracing" the FTC's recommendations and that he was in contact with the agency about the issue.

Joining Waxman in opposing Wheeler's initial proposal have been some state attorneys general, wired and wireless ISPs and advertisers.