ISPs were beginning to weigh in on the FCC’s new broadband proposal taking a more nuanced approach by gauging its protection on the sensitivity of the data, though agency chairman Tom Wheeler’s proposal to categorize Web browsing histories and app histories as sensitive information was not sitting well with NCTA-The Internet & Television Association.

"The Chairman’s Fact Sheet describes a regime that departs from the FTC’s proven sensitivity-based approach to consumer privacy in several key respects," said NCTA. "Specifically, in its treatment of web browsing data and first party marketing of ISP services, the FCC departs from past FTC practice in ways that violate principles of fair competition and deny consumers the benefit of a consistent approach to online privacy protection. If the Chairman insists on advancing this approach, we would hope that his fellow commissioners would ‘opt-out’ and seek a result more faithful to the FTC’s proven framework of protecting consumers."

NCTA pushed for a more FTC-like model, but clearly this was not quite it.  NCTA had a similar reaction to FCC Chairman Tom Wheeler's pivot on set-tops toward an app-based approach NCTA had proposed, which is while it looked like a pivot, it was not all it seemed.

The Information Technology & Innovation Foundation (ITIF) called it a faux compromise.

"The privacy framework announced today, like the Title II common carrier designation before it, sets a terrible precedent likely to reverberate throughout the Internet ecosystem for years to come," the group said.

"This proposed order represents one more slide down the slippery slope, away from the innovation-friendly world of flexible guidelines and effective oversight and towards a paternalist mother-may-I regime that will necessarily raise consumer costs and limit investment. Let’s be clear: This proposal is a vehement rejection of the type of U.S. regulatory oversight that has allowed U.S. businesses to thrive online and a sharp reversal from past claims that the U.S. government is committed to using multistakeholder processes for creating Internet-related policies. Instead, it would create a rigid regulatory regime and introduce a new collective action problem that would limit the use of virtually all data that can be put to economically beneficial uses.

"The FCC claims to hew more closely to the tried-and-true FTC privacy framework. It does only in that the FCC plans to base its data sharing consent requirements loosely around the sensitivity of the data involved, rather than placing heightened restrictions based solely on the company holding the data.

"But key departures from the FTC model negate most, if not all, of the advantages of this approach. First, the FTC offers guidelines, not regulatory mandates. The FCC’s class of 'sensitive' data requiring opt-in consent is absurdly large, effectively requiring ISPs to obtain opt-in consent for any uses of consumer data—a scenario that will chill investment and diminish competition by establishing disparate privacy rules for separate segments of industry.

"In addition, the FCC would force companies to ask for permission from the government before offering their broadband customers discounts for sharing of data. This paternalistic approach assumes that consumers are neither smart enough nor savvy enough to make their own choices about how to reduce their costs."

Telcos were a little more sanguine, though still with reservations.

“Consumers are best served when privacy rules are clear and consistent across the entire internet. We are pleased that the FCC has recognized the importance of providing consumers with a common expectation of privacy without regard to service or platform, and that the sensitive nature of the information being shared should be the determining factor in what is afforded increased protection," said USTelecom president Walter McCormick. "We are concerned, however, that the commission, which has no expertise with regard to determining the content of speech, is now attempting to redefine what consumers may regard as sensitive. In this regard, consumers would be better served if the FCC were to defer to the expertise of the FTC in this area, and the two agencies were to pursue a uniform approach.”

Verizon chief privacy officer Karen Zacharia said: "At Verizon, we are encouraged that the FCC appears to have taken seriously the input provided by a wide range of stakeholders and seems to be moving towards an approach that provides for more consistent standards across the internet ecosystem. We care deeply about our customers’ privacy, and understand that we have much at risk if we lose their trust. A consistent approach to privacy that gives consumers the same information and choices about the use of their data, regardless of the type of company they interact with online, is essential.  Maintaining a consistent set of standards also will foster the competition and innovation that consumers love about the Internet.

"Where the FCC draws the line between sensitive and non-sensitive data will be important, but in general we agree that a sensitivity-based approach is more closely aligned with the Federal Trade Commissions’ choice framework and better for consumers," Zacharia added. "We think that this approach better reflects our customers’ expectations. In fact, at Verizon, we have long tailored choices for our customers based on data sensitivity.

"Verizon is much more than an ISP," she continued. "For a company like Verizon, which offers a diverse set of products and services across the Internet ecosystem, this movement towards a harmonized approach is particularly important."

The Association of National Advertisers sounded hopeful but concerned.

“We are just beginning to review Chairman Wheeler’s Broadband CPNI Fact Sheet, and are pleased that it now distinguishes between sensitive and non-sensitive information," ANA said in a statement. "This distinction is critically important and consistent with existing law and self-regulatory standards, like those of the Digital Advertising Alliance. While the Fact Sheet cites some examples of the information that will fall into each category, it will be crucially important that the definition of sensitive information is not overly broad or this approach will prove onerous both to business and consumers and counterproductive. We are also extremely concerned about some provisions, including the overly-burdensome data breach notification obligations that are inconsistent with state approaches to this issue in the U.S. This aspect of the proposal is highly likely to force companies often to have to prematurely notify a breach before all facts are at hand.  We look forward to working with the FCC on these issues as this matter advances.”

Today (Feb. 8) marks the 20th anniversary of the Telecommunications Act of 1996, which updated the Communications Act of 1934 let cable into the phone business and phones into cable.

B&C/Multichannel News polled some policymakers and watchers to weigh in on the impact of the principally deregulatory rule rewrite and to offer up a birthday wish if they liked.

Rick Boucher , former chair, House Communications Subcommittee

“My involvement in formulating the ‘96 act began in 1988 when I joined with then Sen. Al Gore in introducing legislation to allow telephone companies to offer cable TV service (multi-channel video distribution services) in their telephone service areas.

“That measure became the first plank in the 96 act, and it was joined by a provision to enable cable companies and other competitors into the local telephone market, a provision to create greater competition in the long-distance market by setting the conditions for the entry of the Regional Bell Operating Companies (RBOCs) into the nationwide long-distance market and a provision enabling the RBOCs to manufacture telecommunications equipment. I was active throughout the committee process in processing the 96 act and served as a member of the conference committee.

“My ‘birthday wish’ for the act is that Congress adopt much-needed legislation recognizing the digital and mobile era into which telecommunications has emerged. The 96 act was about analog services and to a large extent "plain old telephone services.” These provisions will help to modernize the 96 act for the digital era:

1. Congress should pass legislation which declares that broadband is an information service not subject to common carrier regulation. The legislation should also give statutory permanence to strong network neutrality guarantees along the lines of the FCC's 2010 open Internet order. Such a bill allows both network neutrality proponents and the proponents of light touch regulation of broadband to achieve their major legislative objectives and puts to rest the longest standing and most contentious telecommunications debate of the 21st century. It would also remove the uncertainty about future broadband regulation which is restraining broadband investment.

“2. Congress should recognize in legislation the advanced nature of the Internet protocol transition and set a date, perhaps 2020, for the sunset of the old legacy copper network. Every dollar that telephone companies are required by law to expend today maintaining the copper network is a dollar not expended on fiber optics and other advanced 21st-century telecommunications infrastructures.

“3. Another legislative provision should create incentives for government agencies to surrender telecommunications spectrum for auction to commercial wireless carriers. Simply stated, government agencies should be offered a share of the auction proceeds in exchange for a surrender of the spectrum they hold. That approach appears to be working in the case of television broadcasters, and there's every reason to believe it would work well for government agencies. In my mind, that's the best approach to getting large allocations of spectrum onto the commercial auction block quickly and meeting the growing demand for spectrum for mobile data.

“4. Congress should also adopt a Bill of Rights for privacy for Internet users with jurisdiction in the Federal Trade Commission over all telecommunications privacy issues. Providing to Internet users greater assurance that their privacy is protected should result in a greater willingness to use the Internet for commercial purposes.”

Matt Polka, president, American Cable Association

“One of the lessons we should learn from the 1996 Act is that because the communications market is so dynamic and because we do not legislate often, Congress should focus on crafting broader substantive principles, establishing sound procedures to address issues, and letting the FCC handle matters day-to-day with regular oversight.

“American Cable Association members believe any new legislation should be based on the precept that the federal government should permit the communications marketplace to work to the maximum extent possible and intervene only when necessary to ensure the availability of viable and competitive high performance communications networks and advanced services to all Americans.”

FCC Commissioner Michael O'Rielly

"Today marks the 20th Anniversary of the signing into law of the Telecommunications Act of 1996.  I vividly remember the events leading up to that moment and recall the strong leadership of my then boss, House Commerce Committee Chairman Tom Bliley.  

"The signing represented so much promise of what could be and reflected found trust between legislators.  It is a shame that many of the deals struck in the law were not actually honored and many provisions have since been abused beyond recognition by regulators, the courts and advocates.  My wish would be for the Commission to focus on the future of communications, rather than trying to drag new innovations into old fights."

USTelecom President Walter McCormick:

“With its twin pillars competition and deregulation, the Telecommunications Act of 1996 set the stage for the thriving broadband Internet economy we take for granted today. It transformed the communications industry from a group of isolated monopolies to a highly competitive, diverse, and innovative marketplace.

“Consumers are the greatest beneficiaries of these evolutionary changes. Having achieved its core market-opening goals and achieved a fast-paced, dynamic broadband economy, much of the Act is now obsolete. It is time for a refresh. Congress, as the elected representatives of the American people, must ensure that telecom policy addresses today’s challenges, not last century’s, and ensures that we retain our international leadership. “

Randolph May, president, Free State Foundation

“I followed [the Act] very closely as a lawyer practicing in the field and former FCC Associate General Counsel.

“I am happy to extend ‘happy birthday’ wishes to the Telecom Act of 1996, but, frankly, it’s now long past time to be readying ‘good-bye’ wishes too.

At best, the act was a transitional vehicle to help get us from the analog to the digital world. At worse, the statute was insufficiently deregulatory in direction, or at least sufficiently ambiguous that it could be interpreted in an overly regulatory manner, which is what we have now. We need a new Digital Age Communications Act soon, and, at its heart, it needs to have a silo-less market-oriented, competition-based standard to guide the Commission’s regulatory endeavors.”

Sari Feldman, President, American Library Association

“The Telecommunications Act and the E-rate program it created is the engine powering much of the digital transformation underway in America’s nearly 17,000 public library locations.  In 1996, only 28 percent of public libraries provided public Internet access, compared with over 99 percent who report this today.  Great hanks to Senators [Jay] Rockefeller, [Olympia] Snowe and [Ed] Markey for their foresight in enabling these strides in both public access and innovation!”

National Cable & Telecommunications Association President Michael Powell

Powell was traveling, but in an essay in the Federal Communications Law Journal at George Washington University Law School http://www.fclj.org/reflecting1996/,  Powell said this of the Act:

“When I was FCC Chairman I frequently testified before Senator John McCain’s Commerce Committee. The Senator always began with a pointed question to me: “Was the 1996 Telecommunications Act a success, yes or no?” He wanted me to say no, given that he voted against the Act. I always  answered emphatically, “Yes.…

“Sadly, the exceptional bipartisan consensus that gave birth to the 1996 Act and its liberating regulatory framework is breaking down. Now, the ambiguity of the Act—only getting worse with time—is being used to resurrect a muscular regulatory model that places renewed (and unfounded) faith in regulators to manage the Internet. The trends are ominous and cause me to rethink how I would answer Senator McCain today. I confess, I am wavering.”

Consumer Technology Association President Gary Shapiro

"Twenty years after it became law, the Telecom Act still helps encourage new technology and innovation," he said in a Birthday Greeting statement distributed to the press corps. "As we said at the time, the Act would aid our successful transition to HDTV, move in the right direction on spectrum and enable flexibility in product offering and consumer choice. As we also said at the time, mandating V Chip technology would accomplish little and hinder better parental option technologies.

"But overall, in the last two decades, the Act has not hindered companies from creating new products and services, and thanks to the Internet, new services and business models have benefitted the American people."