Telco ISPs Ask FCC to Reverse Broadband Privacy Rules

USTelecom has petitioned the FCC to reconsider its broadband privacy framework order.

The FCC Democrats voted Oct. 27 to require ISPs to get their subs' permission (notice and choice) before sharing web browsing and app use histories with third parties for marketing and other purposes.

The order also includes data security and data breach notification rules as well as a prohibition on making info sharing a quid pro quo for service and a case-by-case look at offering incentives to share info. The FCC will also preempt state privacy, data security and data breach laws that conflict with its new rules.

That USTelecom petition comes as one of the three Democratic voters in the partisan 3-2 vote, Jessica Rosenworcel, has exited and a Trump FCC is widely expected to want to roll back the votes on broadband privacy and Title II-based net neutrality rules.

That Title II reclassification is what deeded the FCC broadband privacy authority formerly under the Federal Trade Commission.

If Title II is reversed, the new FCC framework would be mooted, but until and unless that happens, USTelecom said the FCC should "modify" key parts of the order, in which it established a framework for regulating broadband customer privacy as it currently does the privacy of customers of traditional cable service.

As USTelecom and cable operators argued before the vote, they want the FCC to "harmonize" its approach with that of the FTC.

At the moment, it argues, there are at least a couple of discordant notes in the FCC's approach, which it also argues is arbitrary and capricious. First, it says, was the lack of a cost/benefit analysis of the cost of "foreclosing productive uses of information." For example, it says, the cost of requiring an opt-in regime for marketing of all web browsing info, in contrast to the FTC approach to the edge providers privacy it oversees, which allows more "flexibility" for marketing of nonsensitive information—i.e. not opt-in requirement.

Second, USTelecom argues, the FCC treats ISPs as "nearly omniscient," with greater visibility into consumer data than others, a premise USTelecom calls false.

"These two overarching errors led the Commission to adopt a number of ill-considered rules that it should now reverse," said USTelecom.

While USTelecom is arguing for changes to what the FCC is doing, it is not abandoning its arguments that the FCC does not even have the authority to be doing it.

"Although this petition focuses on the factual and policy-oriented shortcomings of the Order, USTelecom preserves all legal arguments that it and others have made," it said. "These include the arguments (1) that the Commission’s reclassification of broadband Internet access services under Title II was unlawful and that Section 222 is thus irrelevant to those services; (2) that the Commission lacks authority over many ISP privacy and data security practices even if broadband Internet access remains subject to Title II; and (3) that various aspects of the Order violate the Communications Act, the Administrative Procedure Act, and the First Amendment.

“In filing this petition, USTelecom is laying out a path for the Federal Communications Commission (FCC) to fully harmonize its broadband privacy rules with the well-established privacy and data security framework used by the Federal Trade Commission (FTC)," said new USTelecom president Jonathan Spalter. "The FCC’s current order creates a confusing approach that does not serve consumer privacy interests well. And, by refusing to adopt the FTC’s approach that also values innovation and competition, the FCC order threatens real harms to consumers and the Internet. USTelecom supports maintaining elements of the order that are consistent with the FTC’s privacy regime. But as long as the FCC classifies broadband Internet access as a ‘common carrier service,’ it should provide clarity to consumers and help ensure a competitive and innovative Internet by harmonizing its privacy rules with the carefully developed approach used by the FTC.”

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.