FCC Seen Unlikely To Offer Much More Time To Comment on Privacy
Though the proceeding is complicated, the FCC is unlikely to provide much more time, if any, for comments on its ISP privacy NPRM, teed-up by a divided commission at the March 31 meeting (see 1603310049), industry observers said. The Association of National Advertisers (ANA) filed a letter last week asking the agency to extend the comment deadlines 60 days (see 1604130054).
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Recent history shows the FCC is reluctant to provide much extra time for comments on proceedings that Chairman Tom Wheeler has indicated he would like to finalize during the remainder of his chairmanship. In the set-top box proceeding, which like privacy is a stated Wheeler priority, the Media Bureau extended the deadline for comments on proposed changes to set-top box rules, but only by seven days to April 22 (see 1603180041). In the retransmission consent proceeding, the bureau extended only the reply comment deadline and by just two weeks (see 1512230023). Broadcaster groups had sought a much longer extension.
Various public interest and consumer groups, led by New America’s Open Technology Institute, filed a letter Thursday saying the FCC should deny the ANA request. “This issue is extremely important and timely,” the groups said. “To protect consumers without undue delay, the FCC should decide it as quickly as possible. More than a year has passed since the FCC said it would engage in a separate rulemaking regarding [Communication Act] Section 222’s application to broadband providers. ANA now seeks to further delay FCC action on this important and timely issue by another 60 days.”
The issues raised in the NPRM also weren't unanticipated, the letter said. “The Open Internet Order gave a clear indication that the FCC would engage in this rulemaking and therefore interested parties should begin thinking about the issue,” the letter said. “The public has long had notice of many of the questions the FCC would attempt to address in this proceeding because of the extensive interactions between the FCC, regulated entities, and the public.” The letter was also signed by Access Now, the Center for Democracy and Technology, the Center for Digital Democracy, Consumer Action, the Consumer Federation of America, Consumer Watchdog, the Electronic Privacy Information Center, Free Press and Public Knowledge. It was filed in docket 16-106. The FCC didn't comment.
“This rulemaking, which imposes the most restrictive privacy rules for the U.S., except for highly sensitive personal health or financial data, deserves the most careful consideration,” Dan Jaffe, ANA executive vice president-government relations, emailed us. “It is inaccurate to suggest that the broad range of groups affected by this rulemaking could have determined their views before the publication of the proposed rule and the more than 500 detailed questions the FCC put forward. As this rule would have major impacts on the whole governmental privacy regime, it deserves the most careful and thoughtful input to the Commission and without additional time for this analysis that will not be possible.”
But Meredith Rose, staff attorney at Public Knowledge, said she expects the request to be rejected. “This is a big issue for consumers and the chairman has been explicit that he wants to have this done before he leaves,” Rose told us. “It’s hard to see this as anything other than a blatant stall tactic to push this proceeding into the next administration. This isn’t new substantive territory for ANA. They have had both notice of the FCC’s intentions to address this area, through earlier proceedings in 2007 and 2008, and they have discussed the privacy implications of digital advertising in their own materials. ... Nobody is being caught unawares by this proceeding, which, it’s worth noting, has a much broader response window than most.”
The FCC allowed just 57 days for comments, while the usual comment window is 60 days for comments, and another 30 for reply comments, said Berin Szoka, president of TechFreedom. “There’s approximately zero chance Wheeler will grant” an extension, he said. Commissioner Jessica Rosenworcel, in voting for the order, noted the NPRM poses more than 500 questions, Szoka said. “For groups like the ANA with an extremely broad and diverse membership, being able to receive full and thoughtful input and then to respond to the NPRM’s questions will take time and careful consideration.”
Neither ANA nor the public interest groups mention the “thorny” underlying questions on FCC authority to issue rules, Szoka said. “The complexity and importance of those issues are the best reason for taking more time for public comment,” he said. “But if one thing’s clear, it’s that, even if the FCC delays a little further, there is no legal vacuum, either it or the FTC can protect consumers. The FCC’s already waited a year. Why rush now?” The FCC approved the net neutrality order leading to the privacy rulemaking in February 2015.
Free State Foundation President Randolph May said that a year ago, he would have been surprised if a request for additional time in such a complicated proceeding weren’t granted. “Now I would not be,” May said. “There is a difference between refusing to grant repeated extensions that appear to be motivated solely for purposes of delay than granting extensions in cases in which the agency has asked hundreds of questions about topics on which the commission desperately needs input and expertise. This request falls into the latter category."