Georgetown University law professor Paul Ohm came strongly to the FCC's defense in testimony for a June 14 House Communications Subcommittee hearing on the FCC's proposed broadband privacy (CPNI) framework.

The hearing was labeled "FCC Overreach: Examining the Proposed Privacy Rules," so it was clear what the Republican majority that called the hearing thought of the proposal, which, among other things, is to require opt-in subscriber permission to share customer data, a requirement not put on edge providers, who also share data.

But Ohm said the FCC had acted "appropriately and wisely" to apply sector-specific rules to ISPs.

A divided FCC voted March 31 to propose the new privacy regime, but has not voted on a final order.

Ohm's principal arguments for that FCC approach were: (1) ISPs are "important gatekeepers of privacy"; (2) Congress recognized the need for "sectoral" privacy rules and that the FCC is "well-advised to create rules that draw bright and easily administrable lines rather than utilize murky balancing tests, in order to protect consumer expectations and engender consumer trust"; and (3) the proposed rules preserve a level playing field and ISPs "retain the ability to compete directly with search engines and other providers of edge services subject to precisely the same privacy law framework as any other company."

He conceded a need to toughen privacy rules for actors other than ISPs, but suggested the answer is to give the FTC more authority, not tailor the FCC approach to the FTC's current ability only to enforce violations of voluntary privacy policies or otherwise go after conduct that is unfair or deceptive.

The Federal Trade Commission used to oversee broadband privacy, using its enforcement power to go after false and deceptive practices to make sure privacy policies were adhered to. The FCC, which inherited oversight when it reclassified Internet access as a telecom service subject to common- carrier regs, is taking a different approach, proposing rules that require users to opt in to having their customer information shared with third party marketers.

FCC chairman Tom Wheeler has said the different approaches to edge and ISP privacy are appropriate because consumers can far more easily switch from one search engine or site to another, but cannot do so with ISPs, which lack the same ease of switching or competitive choices.

WASHINGTON — The former chairman of the Federal Trade Commission under President Obama is among those cautioning the FCC about its framework for new broadband-privacy rules.

In comments on the Federal Communications Commission’s framework, former FTC chairman Jonathan Leibowitz signaled he was on the same page as multichannel video programming distributors, which have pushed the FCC to adopt the FTC’s model of enforcing existing privacy policies, rather than flex its rule-making muscles with new regulations that could create an uneven playing field between ISPs and edge providers.

Leibowitz, now a partner at law firm Davis Polk & Wardell who counsels on privacy and congressional advocacy, said his approach was “not to erect stop lights dictating what companies and consumers can and cannot do, but rather to strike the right balance between privacy and innovation.”

He said he found some things to applaud in the proposal, but signaled the FCC had not gotten the balance quite right.

Leibowitz praised FCC chairman Tom Wheeler for seeking rules that were consistent with the FTC’s “privacy-by-design approach.” The FCC’s design, though, “overshoots the mark,” he said.

The regulations proposed by the FCC for broadband providers “go well beyond those imposed on the rest of the Internet economy,” Leibowitz said.

MVPDs are particularly concerned with the proposal to prevent Internet providers from sharing users’ information with third parties unless they get affirmative, opt-in consent. That’s something edge providers such as Google and Facebook are not required to do.

Such regulations would undercut the consumer benefits the FCC is trying to protect, Leibowitz said.

He recommended the FTC approach of focusing on the type of data being collected, providing heightened protection for the most sensitive information.

Leibowitz also argued, as have ISPs, for a technology neutral approach. He said the government should not pick winners and losers and that browsers, social-media platforms and operating systems have access to “all or nearly all” of a consumer’s online activity.

The FCC does not have authority over edge service providers, Wheeler has contended, though ISPs counter that the FCC has not been otherwise reluctant to use its Section 706 authority to advance communications.

The Republican chairmen of the Senate Judiciary and Appropriations Committees, the latter which has to sign off on the FCC's budget, have asked FCC Chairman Tom Wheeler to extend the comment period on its broadband privacy proposal, citing the bipartisan majority for a longer look that revealed itself at an FCC commissioners panel at INTX in Boston this week.

The proposal would create new privacy rules, which is a shift from the enforcement of privacy policies and prevention of false and deceptive conduct approach the Federal Trade Commission took before it lost oversight of broadband privacy when the FCC reclassified Internet access as a common carrier service.

The FCC's Wireline Bureau on April 29 denied requests from cable operators and other ISPs large and small that the comment period be extended from the end of May until early July.

In the letter, dated May 19, Sens. Jeff Flake (Judiciary) and John Boozman (R-Ark.) (R-Ariz.) (Appropriations), the senators pointed out that at the INTX show in Boston, three FCC Commissioners--Republicans Ajit Pai and Michael O'Rielly and Democrat Jessica Rosenworcel--were in agreement that it was a complicated subject that would "befit from a longer rulemaking."

Given that bipartisan majority, the senators said, and the fact that it took the FCC a year to notice the rulemaking--after its Title II reclassification created the authority gap--and when it did the notice was 150 pages long--"we ask that you extend the comment period...for a reasonable time, but not less than 45 days."

They want an answer by May 27.

The FCC at press time Thursday (May 12) had not yet posted what one group said was a couple of thousand comments critical of the chairman's broadband privacy proposal.

The FCC is proposing to require broadband providers to get customers' approval (an "opt-in" regime) to share their information with third-party marketers, something not required of edge providers like Google and Yahoo!

At press time, only 28 comments were in the docket, one more than the day before, when the Protect Internet Freedom group, which is strongly opposed to both the new rules and the Open Internet order that prompted them, complained that online petitioner comments had not shown up and wondered why.

READ MORE:Former FTC Chair Has Issues With FCC's Opt-In CPNI Regime | Advertisers Warn Hill on FCC Broadband CPNI Item

FCC chairman Tom Wheeler was asked about the missing comments at a Senate hearing on the broadband CPNI (customer proprietary network information) privacy proposal Wednesday (May 12), and said it was a software glitch on the group's end that the FCC was working on resolving.

FCC spokespeople were not available for comment at press time on the status of the comments.

Rep. Marsha Blackburn (R-Tenn.) says that she does not take issue with the fact that the FCC has chosen to tackle some tough issues--those include privacy, and broadband regulation, and set-tops--but that it has "embraced controversial solutions" seemingly at every turn, including potentially allowing theft by third-party navigation device and radical federal overreach via municipal broadband state law preemption.

Blackburn raised those issues at an FCC oversight hearing Tuesday (March 22), then drilled down on them in a keynote speech at a Free State Foundation policy conference in Washington Wednesday (March 23).

Blackburn is no fan of FCC Chairman Tom Wheelers proposed new framework for regulating broadband customer privacy, authority the FCC gave itself when it reclassified ISPs as Title II telecom services, a move Blackburn also did not like.

The Federal Trade Commission had historically overseen broadband privacy, but only through its ability to pursue companies for violating their own stated policies or otherwise deceptive or unfair conduct. The FCC has more muscular rulemaking authority, and Wheeler sees a need to use it. Among other things, he has proposed requiring broadband customers to opt in to third party marketing uses for their data unless it is being used to market IPS or affiliate services, say seeking to add voice to a video customers' service.

Blackburn points out that the regime only applies to ISPs, calling that one-sided and focusing on the "one part of the Internet ecosystem that doesn't have broad visibility into consumers' online information."

Wheeler has made it clear that the new rules would not apply to edge providers like Web sites and search engines, saying they remain covered by the FTC.

Blackburn referenced a study by Peter Swire, a former Clinton Administration official, that "clearly showed that ISPs – the target of Chairman Wheeler’s new privacy rules – do not have the level of visibility into consumers’ online activities that most edge providers have," a point Swire outlined to Multichannel News/B&C earlier this month.

Blackburn is also no fan of the FCC's preemption of Tennessee state laws limiting municipal broadband buildouts.

She says the logic behind the FCC's preemption is "fundamentally flawed."

"Private companies can’t be expected to compete with taxpayer backed entities," she says. Cable operators who have pushed back on those municipal buildouts agree, arguing that they can be a way to cross-subsidize overbuilds, sometimes with taxpayers left holding the bag for efforts that don't pan out.

Blackburn says that Wheeler's decision to preempt laws in her state and North Carolina "is so radical, so overreaching – that even the Department of Justice could not file a brief in support of the FCC’s position – an almost unprecedented move." She made the same point in her opening statement at the oversight hearing.

Blackburn is also concerned about the FCC's proposal to open up MVPD programming data to third parties, which she branded "AllVid" at the hearing, a reference to the 2010 universal set-top proposal that Wheeler says is not analogous to his current effort. 

"I'm concerned by ideas being pushed by some that would let third parties use content for their own services in ways that violate the licensing terms and without consent of the content creator," she told the Free State audience. "In a TV marketplace that is producing more video content that ever before, why would the government support that kind of intervention and theft?"

Wheeler has said before, and did so again at the hearing this week, that copyrights will be protected, that if they are not MVPDs will have the option of not giving those third parties access to their programming data, and that his proposal was meant to generate this kind of feedback, which the commission will take into account before voting on a final order.

Wheeler has also made the point that competitive navigation devices already in the market have not resulted in copyright violations or license term violations.