FCC Bureau Dismisses Bid To Force Edge Compliance With DNT Requests
The FCC Wireline Bureau dismissed Consumer Watchdog’s petition to open a rulemaking aimed at “requiring Internet edge providers (like Google, Facebook, YouTube, Pandora, Netflix, and LinkedIn) to honor ‘Do Not Track’ Requests from consumers." The FCC had been “unequivocal in declaring that it has no intent to regulate edge providers,” so the petition doesn’t warrant commission consideration, said a bureau order Friday.
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The bureau said when the FCC reclassified broadband Internet access service (BIAS) as a telecom service under Title II of the Communications Act, it declined to generally forbear from applying Section 222’s statutory privacy protections to broadband providers, as it did on many other Title II sections. It did temporarily forbear from applying the commission’s existing voice-oriented Section 222 privacy rules to broadband providers, pending adoption of new broadband-oriented privacy rules.
“The Commission specified that in reclassifying BIAS, it was not ‘regulating the Internet, per se, or any Internet applications or content,’” the bureau said. “Rather, as the Commission explained, its ‘reclassification of broadband Internet access service involves only the transmission component of Internet access service.’” The bureau said that Consumer Watchdog’s petition request (see 1506150050) that the FCC adopt rules protecting consumers’ personal information use by requiring edge providers to honor DNT requests “is inconsistent with the Commission’s articulation of the effect of its reclassification of BIAS and the scope of the privacy practices it stated that it intends to address pursuant to that reclassification.” Commissioner aides had no comment.
John Simpson, Consumer Watchdog privacy project director, was disappointed. "We clearly think they have the authority to do this," he told us. “They’re probably concerned about appearing to regulate the Internet.” The problem, he said, was that Internet edge providers have acquired massive amounts of consumer data by tracking Web use. He said his group wasn’t asking the FCC to prevent edge providers from tracking, but simply take the “relatively modest step” of requiring them to honor consumer DNT requests.
Consumer Watchdog issued a release saying the FCC may be signaling a federal court reviewing the commission's net neutrality and broadband reclassification order that the agency "intends to narrowly make rules, but it leaves consumers unprotected at the biggest online platforms." The group said the FCC's planned Section 222 broadband rules would cover data collected by ISPs such as AT&T and Comcast, but not the data gathered by edge companies such Facebook and Google, even though it's often the same. “Consumers’ data will be protected in one place, but it will be a Wild West, anything goes atmosphere when it comes to giant Internet companies,” said Simpson in the release.
Consumer Watchdog said it would press state regulators, Congress and courts to protect Internet user privacy. Simpson told us the group was considering all its options, with a focus on seeking legislation in Congress. Simpson said the FTC has clear authority to hold edge providers and many other companies to their own announced policies, and it can go after “egregious” data breaches. But he was skeptical the FTC could impose a mandatory DNT compliance rule like the one the group wanted the FCC to adopt.
Michael Calabrese of New America’s Open Technology Institute said the FCC can’t regulate edge providers under the net neutrality order and Title II. “Net neutrality consumer protections are limited strictly to broadband ISPs, such as Verizon or Comcast,” said Calabrese, director of OTI’s Wireless Future Project. “While there is certainly an ongoing need for the Commission and the FTC to examine and limit potential abuse stemming from online tracking, Title II and its consumer data privacy protections are not the right tool for the task.”
Phoenix Center President Lawrence Spiwak said the bureau decision reassures edge providers that the FCC has “got their backs” and “that they’re not going to get dragged into” regulation. “The FCC is clearly protecting the edge; the question is what their intentions are regarding the core, the broadband networks,” he said. Policymakers are still trying to figure out how to deal with broadband Internet privacy complexities, he said. The problem is, he said, if the FCC regulates broadband provider privacy, it will make an industrywide Internet privacy solution more difficult. Spiwak also said the FCC has “robbed profits” from the core networks and transferred them to the edge in recent years, and the broadband privacy rules would just add to that shift, which is “commoditizing” broadband services.