USTelecom, ITTA, Ad Groups Petition FCC to Reconsider Broadband Privacy Order, Rules
Incumbent telco and advertising groups asked the FCC to reconsider the broadband privacy order it approved on a 3-2 party-line vote in October (see 1610270036). The recon petitions of USTelecom, ITTA, the Data & Marketing Association (DMA) and others filed Tuesday follow an earlier petition from Oracle (see 1612220017). They give dissenting Republican commissioners, who will become the majority under incoming President Donald Trump, one vehicle to change the order and its rules. The privacy regulations were adopted after the FCC's net neutrality order reclassified broadband internet access as a Communications Act Title II telecom service, a decision that is also in the GOP crosshairs.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The FCC "exceeded its statutory authority in adopting rules that unduly burden ISPs and unnecessarily upend a successful regulatory system that has fostered the growth of the Internet economy and innovation of countless consumer benefits and services," said a release from the DMA (formerly the Direct Marketing Association). Others making the petition included the Association of National Advertisers, American Association of Advertising Agencies, Interactive Advertising Bureau and Network Advertising Initiative.
The FCC should modify the order and key regulations "to reflect cost-benefit considerations and avoid irrational conflict with the well-established privacy and data security framework applicable elsewhere in the Internet ecosystem," said the USTelecom petition posted online Tuesday in docket 16-106. The petition also said the order "ignores the record facts when it predicates this scheme of asymmetric regulation on the premise that ISPs are nearly omniscient and have greater visibility into consumer data than any other Internet company. That premise is false, as Commissioners [Ajit] Pai and [Mike] O’Rielly and many commenters have explained."
"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," the ILEC group 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."
New USTelecom CEO Jonathan Spalter said the petition laid out a path for the FCC to harmonize its broadband privacy rules with the "well-established privacy and data security framework" of the FTC. The FCC order "creates a confusing approach that does not serve consumer privacy interests well," Spalter said in a statement. "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.” USTelecom also issued a related blog post.
ITTA asked the FCC to simply overturn the order. "The Order takes a revisionist, result-driven approach that runs afoul of cardinal rules of statutory interpretation and the Commission’s own long-held adherence to its governing law," said the midsized telco group's petition, which hadn't yet been posted in the docket. "Rather than attempting to rewrite the Act, the Commission should remain faithful to the statute and Congress’ stated intent in crafting it, and recognize that the Order’s interpretation is untenable."
Spokespersons for FCC Chairman Tom Wheeler and Republican Commissioners Pai and O'Rielly didn't comment.