FCC Hears Applause for Broadband Privacy Pause Effort

FCC chairman Ajit Pai had a growing fan club for his effort to stay the implementation of an FCC broadband privacy rule going into effect March 2 while the FCC considers petitions to reconsider the entire framework, which Pai has major issues with because it does not square with the privacy regime applied to edge-provider privacy by the Federal Trade Commission.

"A stay of the FCC's privacy rules that would take effect on March 2nd is a smart first step toward rolling back asymmetrical regulation that is at odds with consumers' privacy expectations, deters innovation and causes marketplace distortion. Applying different privacy rules to the same online data by saddling only ISPs with new regulations doesn't make sense," said Rick Boucher, former Democratic chair of the House Communications Subcommittee and currently honorary chair of the Internet Innovation Alliance.

"For the previous two decades, the internet flourished under the Federal Trade Commission's (FTC) evenhanded, flexible privacy approach that applied to all companies across the internet and ensured strong consumer privacy protections. Chairman Pai's plan to abandon the FCC's fragmented privacy framework and restore a uniform set of privacy protections will give consumers the true sense of security they deserve, while spurring innovation, investment and new services."

"The Commission is completely right in staying the privacy rules," said Adonis Hoffman, chairman of Business in the Public Interest. "Doing so will avoid duplication, confusion and uncertainty. The FTC has been enforcing privacy regulations effectively, and should be allowed to assert its leadership and expertise."

“It shouldn’t come as a surprise that Chairman Pai wants to stop the privacy rules adopted late last year from taking effect," said Randolph May, president of the Free State Foundation. "He and Commissioner O’Rielly made it abundantly clear when the rules were adopted over their objections that they believed the regulations unfairly disadvantaged Internet service providers vis-a-vis Internet sites like Google, Amazon, and Facebook. And, as importantly, the new regulations, by shackling the ISPs with more stringent, more costly regulations than those imposed on the Internet giants, diminished consumer welfare by chilling competition in the advertising market and reducing the amount of information available to consumers. It’s just common sense that there should be a uniform privacy enforcement regime that properly balances privacy protection that consumer desire with information that they value and demand.”

“This is a critical first step in protecting consumer privacy online while promoting internet competition," said Fred Campbell, director of Tech Knowledge. "The existing FCC rules are an unjust deception that must be stopped now, before the damage to consumer privacy and competition is already done.

"Staying only the rules that are inconsistent with the FTC’s privacy framework doesn’t mean that there will be no enforcement mechanism in place. It only means that broadband ISPs will be subject to the same rules that apply to every other company in the United States. That’s the type of fairness that justice in this country has always required. There simply is no pro-consumer justification for the previous FCC’s decision to take a discriminatory and anticompetitive approach to this issue while dismissing the judgment of the FTC.”

“A stay was inevitable,” said Berin Szóka, president of TechFreedom. “It could take the FCC months to resolve the petitions for reconsideration of the Broadband Privacy Order, because the real question isn't a policy question but a legal one: does the FCC even have authority to regulate broadband privacy?"

"The FCC privacy framework adopted just last October was a sharp departure from the FTC’s innovation-friendly, flexible guidelines that have overseen a successful burgeoning of the Internet. The order was poor policy and a result of poor process, and should be scrapped entirely," said Information Technology and Innovation Foundation telecom policy analyst Doug Brake. "Today’s statement that Chairman Pai intends to hit pause on the first wave of these rules while a broader review moves forward is encouraging. Hopefully this is the first step in a broader dismantling of these rules and the jurisdiction they’re grounded in."

But not everyone was clapping.

“Consumer protections and data security cannot be put on pause,” said Senator Ed Markey (D-Mass.), who is scheduled to participate in a press conference Monday (Feb. 27) defending the FCC's broadband privacy framework. “But with this suspension of privacy rules, Chairman Pai is allowing Internet Service Providers to ignore best data security practices. This could make subscribers sensitive information – including borrowing and banking practices, health care searches, geo-location, and other personal information that can be mined from online activity – more vulnerable to breaches and unauthorized use. Chairman Pai wants to do the bidding of Big Broadband and undo the FCC’s Open Internet Order, and he will clearly do so through every avenue possible, including broadband privacy rules. I strongly oppose Chairman Pai’s decision and his misguided effort to dismantle consumers’ most fundamental protections.”

“Chairman Pai’s announcement lands another blow to consumers on behalf of the Trump Administration," said House Energy and Commerce Committee ranking member Frank Pallone, Jr. (D-N.J.). "The American people have been clear: they want more protections for their data, not fewer.  We must ensure consumers’ private information is protected, no matter where they go on the internet or how they connect.”

"The broadband privacy rule is the only protection for internet users’ sensitive information — including browsing history and location information — in the hands of ISPs," said the Center of Democracy & Technology. " Staying the rules will expose internet users to increased risks that their private information will be shared without their consent, or breached without their knowledge. CDT expressed these concerns to the FCC when we formally opposed a stay of the rules. We will continue to fight for internet users’ rights to know and control how companies use and share their information."

It did make the point that while it opposed Pai's move, Congress should take it as a sign that the FCC's is the right authority to deal with the issue, and not Congress through a Republican effort to invalidate the privacy framework using the Congressional Review Act.

"A CRA measure would prevent the Commission from extending any “substantially similar” privacy protections to internet users in the future," CDT said. "It would also prematurely end the Commission’s efforts to hear from all stakeholders in the proceeding and come to a carefully considered solution."

Pai is asking the FCC to stay a portion of the rules that kicks in March 2, while the FCC continues to consider staying all of the framework.

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.