ISPs Ask Senators to Probe FCC Privacy Plan

Telling Congress they expect the FCC to vote on a new broadband privacy framework by October, the major trade associations representing fixed and mobile broadband ISPs called on the Senate Commerce Committee to drill down on what they call a "radical" proposal they say would increase consumer costs and undermine the internet economy.

That comes in advance of an FCC oversight hearing in the committee Thursday.

In a letter to the leadership of the committee, the National Cable & Telecommunications Association, American Cable Association, USTelecom, CTIA and others signaled that the committee members should probe the commissioners on a host of issues related to the proposal.

Those include the FCC's consideration of banning discounts to customers who allow sharing of their information.

"This is a common value exchange recognized in both the offline and online marketplaces, and millions of consumers take advantage of such savings in rewards, loyalty, and other such programs across many industries," they said, adding: "[S]ingling out ISPs to either prohibit or limit this practice will deprive consumers of potential cost-saving benefits."

The ISPs want the FCC to change course and follow the Federal Trade Commission's approach that applies to edge providers—Google and Facebook—which tailors protections to the sensitivity of data.

The FCC is also proposing to require consumers to opt in to most third-party sharing of data. There is not such requirement of edge providers under the FTC's authority, which the ISPs point out has found opt out a sufficient regime for sharing nonsensitive data.

"A departure from this approach, as reflected in the FCC’s proposed rules, would be radical and undermine the dynamic internet economy," they told the Senators.

Wheeler told a Senate Judiciary Subcommittee panel back in May that that his broadband privacy proposal was an effort to extend traditional network privacy protections to the internet and not a grab of new authority.

The ISPs said that whatever the FCC decides to do, it should exempt smaller providers from the "most onerous" aspects, though they did not spell them out. They pointed out that the committee raised the issue of that impact at a July hearing on the privacy proposal and should do so again.

Finally, they said the committee should look into the impact of the FCC's imposition of a stricter privacy regime than the FTC's on international privacy protections.

They pointed out that the EU-U.S. Privacy Shield program, which will almost certainly be challenged in court, relies on the U.S. assertion that the FTC privacy regime protects customers.

"There have already been questions raised in the EU about the impact of the FCC’s broadband privacy proceeding and the extent to which it undermines U.S. claims regarding the adequacy of the FTC’s approach. We can expect such questions to continue, creating unnecessary risks regarding the legal viability of important mechanisms, such as the Privacy Shield, on which many U.S. companies rely to facilitate trans-Atlantic data flows."

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.