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House Votes to Repeal FCC Privacy Rules

In a victory for ISPs, advertisers and tech companies that had opposed the new FCC's broadband privacy rules, the House voted primarily along party lines 215 to 205 Tuesday to repeal those rules, with only the President's signature needed to make it official. More than a dozen Republicans voted against it.

The vote on the Congressional Review Act resolution of disapproval came after heated and sometimes loud debate over the issue, which even extended to talk about underwear size after Rep. Michael Capuano (D-Mass.) said that ISPs should not be able to sell online information on what size of underwear he buys to garment companies.

The Senate approved the CRA resolution March 23 by a vote of 50 to 48. The resolution removes the rules, approved on a party line vote Oct. 27, from the congressional record and prevents the FCC from adopting substantially similar rules in the future.

Rep. Ro Khanna (D-Calif.) said the bill would allow "Big Brother" to get bigger. Comcast's name was invoked repeatedly as something of a poster-company for those big ISPs seeking to run roughshod over consumer privacy rights, as Democrats portrayed the issue.

Rep. Jared Polis (D-Colo.) noted that not a lot of Republicans were coming to the floor to defend the resolution. For his part, he said broadband providers were trying to seize the value of the internet from content providers. He said everyone wanted a reasonable capital return on infrastructure, but said the entire value chain of the internet should not be turned over to that infrastructure side.

In response to Republican arguments that content provider data collectors — Amazon, Google — were bigger than ISPs, Polis said content providers should be, given the value of that content. But he also said consumers could choose not to use Google or Facebook, but had little competition for internet access.

Polis said the Republicans were trying to shift the burden for cybersecurity from ISPs to consumers and collect more data to do whatever they want with it. He called it an "irrevocable step in the wrong direction."

Rep. Michael Burgess (R-Tex.), who was managing the rules for voting on the CRA, called it a duplicative regulation "dropped on the doorstep" by the previous Administration.

In his opening statement, which was the bulk of the Republican floor argument for the bill, he said that the FCC's new and expanded privacy rules were adopted a mere 10 days before the election, on a party-line vote. He called them a departure from the Federal Trade Commission's [privacy by design] approach. He charged that the FCC's approach unfairly skewed the market in favor of providers, in this case edge providers, like search engines, social media sites and content providers like Netflix, Google, Facebook, Amazon and Apple, who are under the FTC's opt-out approach to web browsing and app use, rather than the FCC rules' opt-in requirement for ISP use of similar info.

He said the FCC rules are arbitrary government intervention in the free market that can inhibit security and market competition and their cybersecurity notification requirements could lead to "notice fatigue" while creating confusion by "subjecting part of the internet ecosystem to different rules and jurisdictions."

Burgess said the CRA would simply restore the status quo before the 2015 open internet order and bring the marketplace back into balance.

During debate on the actual bill, Republicans lined up to blast the rules, including Rep. Marsha Blackburn (R-Tenn.), chair of the House Communications Subcommittee, and Greg Walden (R-Ore.), chair of the House Energy & Commerce Committee.

They said the regs would stifle innovation and hurt consumers. Blackburn backed a House version of the CRA that passed in the Senate before moving on to the House. They said the Federal Trade Commission should be overseeing broadband privacy. 

Bill Johnson (R-Ohio) said the FCC decision ignored the wishes of consumers in favor of a regulatory power grab.

Rep. Anna Eshoo (D-Calif.) said Congress had "betrayed the American people" on privacy. She said broadband providers will be able to sell personal information to the highest bidder and no one, including the FTC, would be able to protect them. "If it's gone today, it's gone, period," Eshoo said.

Rep. Mike Doyle (D-Pa.) said that ISPs should have to ask for permission to use subs' info no matter what kind of information it is, sensitive or nonsensitive.

Rep. Frank Pallone (D-Calif.), ranking member of the Energy & Commerce Committee said consumers were rightfully concerned about the sale of their information given that Republicans were trying wipe out privacy protections. He called the CRA a gift to countries like Russia, who wanted to access our citizens' information. "Consumers want more privacy protections, not less," he said.

Rep. Bob Latta (R-Ohio) said he has introduced legislation that would close a legal gap and make sure that the FTC can regulate broadband privacy if it gets that authority back from the FTC.

The Ninth Circuit Court of Appeals ruled that the FTC's exemption from regulating common carriers could also apply to non-common carrier subsidiaries, say if Verizon bought Yahoo.

That could leave a privacy regulatory gap, and Latta's bill would make it clear that the exemption applied to the parent telecom, not non-common carrier subsidiaries, essentially confirming that the exemption applies only to common carrier activities.

The bill was voted on a closed rule, which meant no amendments, though Democrats opposed that rule and tried to add an amendment that would have made President Trump, and future presidents and presidential candidates, release their tax returns.

House Majority Leader Rep. Kevin McCarthy (R-Calif) said Tuesday that rolling back the FCC's privacy regs would be the 15th CRA resolution that has passed the House in an effort to "bring back common sense regulation."

ISPs pledged last year, and reiterated in a conference call with reporters before the vote, that they would abide by voluntary privacy principles, and that in any event there was still plenty of federal and state privacy oversight without the rules.

Broadband privacy oversight will also automatically revert back to the FTC if and when either Congress or the FCC reclassifies ISPs as information service providers, rather than telecoms subject to Title II common carrier regs.