USTelecom, ITTA to FCC: Reconsider Privacy Rules

Industry trade groups this week asked the Federal Communications Commission to reconsider an order affecting broadband ISPs that imposes consumer privacy requirements.

The FCC lacked the authority to adopt the privacy measures, ITTA, an advocacy group representing midsize communications companies, argued in a petition for reconsideration. The Commission invoked Section 222 of the Communications Act in establishing a framework that requires, among other things, customers’ consent before certain sensitive information can be shared, such as web-browsing history, financial data and social-security numbers.

FCC's Tom Wheeler“ITTA acknowledges that the order’s measures are well-intentioned in that consumer choice in the use and dissemination of private information by their service providers is inarguably an important and worthy policy goal,” the Washington, D.C.-based ITTA asserted in its Jan. 3 petition for reconsideration. “Despite the best of intentions, however, the Commission simply does not have the imprimatur to bestow upon itself the statutory authority to adopt the order’s requirements. Only Congress may do that — but it did not.”

In October 2016, the FCC voted 3 to 2 to adopt the privacy rules, which the Commission indicated it was obligated to do after it reclassified broadband Internet access service in 2015 as a telecommunications service as part of a controversial net neutrality, or internet, ruling. Under Section 222 of the Telecommunications Act of 1996, a carrier has an obligation to protect customers’ proprietary data.

“The bottom line is that it’s your data,” FCC Chairman Tom Wheeler said at the time of the vote. “How it’s used and shared should be your choice.”{ad}

But trade associations criticized the FCC’s decision. In a petition for reconsideration, the United States Telecom Association (USTelecom) contended the order is “arbitrary and capricious.”

“So long as the Commission classifies broadband Internet access as a ‘common carrier service,’ it should ensure technological neutrality and avoid consumer confusion by harmonizing its privacy regime with that of the Federal Trade Commission (FTC), under which most participants in the Internet ecosystem operate,” the Washington, D.C.-based trade association, whose members include such heavyweights as AT&T, CenturyLink and Windstream, wrote in its Jan. 3 petition.

Wheeler, a Democrat, will step down from his post on Jan. 20, coinciding with the inauguration of president-elect Donald J. Trump, who is expected to name a GOP successor in the coming weeks. Under a Republican administration, the FCC may be more inclined to reconsider its order. The two Republicans at the Commission, Ajit Pai and Michael O’Rielly, dissented from, or opposed, the 2016 privacy rules.

“As a whole,” O’Rielly observed in his eight-page dissenting statement, “this order places substantial, unjustified costs on businesses and consumers.”

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