Blackburn Slams FCC Over Set-Tops, Preemption

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.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.