Public Knowledge, the Center for Digital Democracy and Consumer Watchdog have petitioned the FCC to enforce cable set-top privacy rules against Comcast, AT&T and Cablevision in particular, and the industry more generally, and argue that means mandating an opt-in regime for use of set-top data for marketing purposes.
That comes in a complaint being filed Thursday with the commission, according to a copy provided to B&C.
While the FCC is currently deciding how to apply its MVPD privacy rules to broadband—including proposing an opt-in regime for some uses—the groups are suggesting it also needs to apply those rules better to cable ops already under privacy regs.
They argue that MVPDs are using consumer data for advertising purposes without properly obtaining consumer consent or letting subs know the extent of that information collection. "The Commission should enforce the relevant privacy provisions to ensure that cable operators only use subscriber information when they have the consent required by law," they said.
They say that cable operators—they include AT&T and its U-verse video service in that category—collect and share customer data for targeted ads without sufficient notification to subs. They concede many providers include statements in their privacy policies indicating they use personally identifiable information combined with third-party data for ads but say those disclosures aren't sufficient to comply with cable privacy rules on set-top info.
To buttress their case, they cite a June 2015 notice of apparent liability against AT&T Mobility. "The Commission found that when a disclosure deprives consumers of sufficient information to make informed choices and thereby impedes competition in the marketplace, the disclosure is insufficient to cure violations of the Commission’s rules," they said.
The groups argue that the use of opt out regimes does not constitute the "prior written or electronic consent" required by the privacy rules and want the FCC to confirm that.
"[T]the Commission should take the affirmative step of declaring that the use of customer information requires opt-in consent and that absent such consent, cable providers violate privacy rules by collecting customer information and using it to deliver marketing tailored to those customers."
The groups want the FCC to address the general practice of cable providers giving advertisers "the ability to easily access and use a customer’s information, without that customer knowing the extent to which that information is being used."
But they targeted their complaint to AT&T, Cablevision and Comcast, saying they were "among the most egregious" improper users of data.
“Comcast is committed to the privacy and security of our customers’ personal information," the company said. "This Petition is off base, is misleading on both the facts and the law, and is little more than an attempt to divert attention from a set of flawed proposals that the FCC has put forward on set-top boxes and broadband privacy. All our privacy practices are fully consistent with the law. The FCC’s pending proposals on set-top boxes and privacy have drawn widespread criticism and would leave consumers, competition and innovation worse off.”
Labeling the complaint bogus, AT&T SVP Jim cicconi responded: “AT&T’s use of anonymous and aggregate set-top box information is entirely consistent with the statute. Our disclosures tell our customers exactly how we use that data and provide tools for customers to opt out. Frankly, this complaint is bogus, and seems mainly designed to distract the public from the overwhelming bipartisan opposition to the FCC’s controversial set-top box plan. That plan itself will erode existing consumer privacy protections, not to mention its many other harms. Because the plan’s few remaining supporters have no answer to that charge, they’ve decided to invent a false privacy claim. This smacks of desperation, and it also carries the whiff of hypocrisy. It’s further proof, if any is needed, that the plan’s supporters have lost the public policy debate on this issue.”
Asked if Public Knowledge wanted the FCC to apply the same opt-in standard for third-parties if they gain access to that set-top-box (STB) info via the FCC's set-top box proposal, SVP Harold Feld said yes. "We want the same standard to apply to all third party set top boxes," he said. "Since that is opt in for cable, it logically follows it would be opt in for any other third party STB -- with regard to the STB data."
"It’s clear that consumer privacy is a meaningless term when it comes to the data practices of multichannel TV phone and cable giants," said Center for Digital Democracy executive director Jeff Chester. "They are engaged in a massive exploitation of subscriber data that should really be private. How leading cable and phone companies engage in cross-platform data collection and targeting, with their set-top playing a pivotal role undermining consumer privacy, is reason enough for the FCC to quickly enact Chairman Wheeler’s ISP proposal."
Not everyone saw it that way.
"Pressing for an opt-in regime is counter to what consumers have come to expect and be comfortable with," says Adonis Hoffman, chairman of Business in the Public Interest and former chief of staff to FCC Commissioner Mignon Clyburn. "Culturally, we have become accustomed to 'opting out' of stuff we don't want. It is simple; it is easy, and it is ingrained in our digital DNA. Consumers know how to just say no to the practices and things they do not want--whether it is ads, lists, or solicitations. And our comfort level has been evolving for years."
"It is commercially unreasonable and workable to require businesses to move to opt-in. Imagine the costs and the re-tooling this will require. That has impracticality written all over it, and it may not achieve the desired results, which is the wholesale protection of consumer privacy."
Also joining in the complaint and call for action were TURN—The Utility Reform Network and Consumer Action.
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