NCTA: FCC Should Scrap Broadband Privacy Rules

Says they violate First Amendment and exceed commission authority
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The FCC should scrap its broadband privacy and data security order for at least four reasons, NCTA: The Internet and Television Association told the FCC Tuesday, Jan. 3, the deadline for petitioning the commissioner to reconsider the Oct. 27 decision.

NCTA was one of many groups to take aim at the order, which passed on a partisan vote with the Republicans about to be in the majority voting strongly against it.

The order requires ISPs to get their subs' permission (notice and choice) before sharing web browsing and app use histories with third parties for marketing and other purposes. It also includes data security and data breach notification rules as well as a prohibition on making info sharing a quid pro quo for service and a case-by-case look at offering incentives to share info. The FCC will also preempt state privacy, data security and data breach laws that conflict with its new rules.

The four reasons, according to a copy of the petition for reconsideration, are that the framework  1) exceeds the FCC's authority; 2) "arbitrarily and capriciously" departs from the Federal Trade Commission's approach (the FTC was responsible for broadband privacy before the FCC reclassified ISPs as common carriers); 3) violates the First Amendment because it makes "speaker-based" distinctions between similarly situated competitors [ISPs and edge providers] in how they may use and share the same set of information; and 4) creates "unworkable data breach and security requirements.

NCTA says the order "wrongly concludes that ISPs occupy a unique gatekeeper role that justifies singularly restrictive limits on their ability to use customer data." It also says the order "compounds" the FCC's error in reclassifying ISPs as common carriers and that the FCC's likely reconsideration of that decision bolsters the reconsideration request.

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