Ad Groups Make Personal Pitch to FCC on Privacy

Say new opt-in categories should get public comment, not vote

Representatives of the major advertising trade associations met with a top advisor to FCC chairman Tom Wheeler last week to warn that the chairman's new approach to broadband privacy rules was a consumer-unfriendly approach that threatened the internet economy, saying the chairman should put his new proposal out for comment before voting.

According to an ex parte filing, representatives of the American Association of Advertising Agencies, Association of National Advertisers, DMA and IAB said that the FCC should either remove web browsing and app use from the definition of sensitive information for whose collection and sharing ISP subs would have to affirmatively grant permission (so-called "opt in") or remove the opt-in provisions from the final order and issue a Further Notice of Proposed Rulemaking "to develop the appropriate record required to fully analyze the best path forward regarding these issues."

Wheeler initially was proposing to make almost all sharing of ISP sub info with third parties subject to opt in, something not required of edge providers under the Federal Trade Commission's regulation of that sector. The FTC used to regulate broadband privacy under similar regime before the FCC's reclassification of ISPs as common carriers precluded the FTC from regulating them.

But in response to complaints about that bifurcated regulatory approach, Wheeler moved to what he billed as a more FTC-like model, with opt-in requirements based on the sensitivity of data. But at the same time he proposed making web browsing and app use sensitive data subject to opt in, so ISPs and advertisers saw the change as a distinction with little difference.

"[W]hile professing to follow the Federal Trade Commission’s ('FTC') privacy framework," they told Wheeler senior counselor Phil Verveer, according to an ex parte filing on the meeting, the new proposal "in reality expands that framework to place heightened restrictions around data that the FTC has never considered sensitive. The participants also noted that restricting the ability of entities to engage in the collection and use of web browsing and application use data for advertising purposes would limit consumer choice, and ultimately harm consumers by interrupting the well-functioning Internet economy that provides consumers with free and low cost products and services."

The FCC is scheduled to vote on the final order, including the new opt-in regime for browsing and app use, on Oct. 27.