AT&T Calls FCC Broadband Privacy Rules ‘Illogical’ as ITTA Preps Legal Challenge


Edward GatelyThe Federal Communications Commission (FCC) on Thursday adopted rules requiring broadband providers to receive customer permission to use and share sensitive information.

The rules “ensure broadband customers have meaningful choice, greater transparency and strong security protections for their personal information collected by ISPs (Internet service providers),” the FCC said.

AT&T's Joan MarshThe scope of the rules is limited to broadband service providers and other telecommunications carriers. They do not apply to the privacy practices of websites and other “edge services” over which the Federal Trade Commission has authority. They also do not include other services of a broadband provider, such as the operation of a social-media website, or issues such as government surveillance, encryption or law enforcement.

Joan Marsh, AT&T’s senior vice president of federal regulatory, said the framework adopted “departs from the Federal Trade Commission (FTC) regime in significant and illogical ways, most importantly in the treatment of web browsing and app history data.”

“In this regard, the FCC’s order falls short of recognizing that consumers want their information protected based on the sensitivity of the information collected, not the entity collecting it,” she said. “The FCC’s divergent approach will ultimately serve only to confuse consumers, who will continue to see ads based on their web-browsing history generated by edge providers even after they have been told by their service provider that their consent is required for use of such information.”{ad}

Kathy Grillo, Verizon’s senior vice president and deputy general counsel, public policy and government affairs, said the telco has “stressed the importance of creating a consistent approach to privacy that gives consumers the same information and choices about the use of their data, regardless of the type of company they interact with online.”

“While we will need to closely review the text of the FCC order after it is released, the final order appears to adopt rules that are much more closely aligned with the FTC’s privacy framework that has long applied to our ISP business and that continues to apply to the rest of the Internet ecosystem,” she said.

The rules separate the use and sharing of information into three categories:

  • Opt-in: ISPs are required to obtain affirmative “opt-in” consent from consumers to use and share sensitive information. Information considered sensitive includes precise geolocation, financial information, health information, children’s information, social security numbers, web browsing history, app-usage history and the content of communications.
  • Opt-out: ISPs would be allowed to use and share …


  • … non-sensitive information unless a customer “opts out.” All other individually identifiable customer information – for example, email address or service-tier information – would be considered non-sensitive, and the use and sharing of that information would be subject to opt-out consent.
  • Exceptions to consent requirements: Customer consent is inferred for certain purposes specified in the statute, including the provision of broadband service or billing and collection. For the use of this information, no additional customer consent is required beyond the creation of the customer-ISP relationship.

In addition, the rules require ISPs to provide customers with “clear, conspicuous and persistent” notice about the information they collect, how it may be used and with whom it may be shared, as well as how customers can change their privacy preferences.

Genny Morelli, president of the Independent Telephone & Telecommunications Alliance (ITTA), said the rules far exceed the FCC’s statutory authority.

“The authority to apply the complex and burdensome privacy regime adopted today is nowhere to be found in the Communications Act or its legislative history,” she said. “ITTA looks forward to participating in the legal challenge to today’s decision and is confident the decision will be found unlawful.”

Edge providers have “far greater access to exponentially greater quantities and varieties of consumer information than ISPs,” yet the rules adopted subject ISPs to far stricter regulatory scrutiny, Morelli said.

“The uneven competitive field between ISPs and edge providers created by today’s decision will create customer confusion and will stifle competition in the online advertising marketplace,” she added.

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