Industry Pressure Mounts on Congress to Use CRA Against FCC Privacy Rules

The fierce exchanges about CRA use came before a Monday date many consider significant for introduction of CRA resolutions. House Majority Leader Kevin McCarthy, R-Calif., promised initial processing of resolutions this week. A spokesman for Senate Majority Leader Mitch McConnell, R-Ky., said he lacked any announcements or guidance on the topic.

One media industry official told us Friday it’s still unclear if the rules will make it onto a CRA list of Obama administration regulations to nix, suggesting it’s still under discussion, as Hill Republicans said was the case earlier this month (see 1701090062 and 1701100080). The official was unaware of any CRA list circulating. Hill Republicans spent multiple days last week at a GOP retreat in Philadelphia to plan their agenda going forward.

“Invoking Congress’s prerogative as provided in the CRA will help clear the way toward re-establishing a consistent, uniform set of privacy protections for consumers across the internet,” said Friday’s industry letter to the leaders of both chambers, signed by groups including the American Cable Association, Competitive Carriers Association, CTA, CTIA, Data and Marketing Association, ITTA, NCTA and USTelecom. “Enact a resolution of disapproval to vitiate the FCC’s Order.” The "FCC approach would needlessly upend this successful system and should be revisited to avoid unnecessarily stifling the digital economy which fuels millions of American jobs and delivers content and services that benefit consumers,” said Data and Marketing Association Senior Vice President Emmett O’Keefe.

Defenders of the rules claim, as some observers said earlier this month, that nixing the rules with a CRA could create a gap in privacy oversight. They question FTC ability to act in this space, as the trade groups said was possible. The CRA's use would prevent the FCC from establishing similar rules later on absent congressional authorization.

“As the 9th Circuit recently decided in a case brought by AT&T, common carriers are entirely exempt from FTC jurisdiction, meaning that presently there is no privacy replacement for broadband customers waiting at the FTC if Congress disapproves the FCC’s rules here,” said a letter Friday from the American Civil Liberties Union, Consumers Union, Free Press, New America’s Open Technology Institute and Public Knowledge. “This lays bare the true intent of these industry groups, who also went to the FCC asking for fine-tuning and reconsideration of the rules before they sent their CRA request. These groups now ask Congress to create a vacuum and to give ISPs carte blanche, with no privacy rules or enforcement in place. Without clear rules of the road under Section 222, broadband users will have no certainty about how their private information can be used and no protection against its abuse. ISPs could and would use and disclose consumer information at will, leading to extensive harm caused by breaches and by misuse of data properly belonging to consumers.”

Sen. Ed Markey, D-Mass., and House Commerce Committee ranking member Frank Pallone, D-N.J., pushed back against Hill reversal. “Broadband privacy rules finally put consumers in control over their sensitive information, not corporations,” Markey said in a statement Thursday. “But now, the big broadband barons want to turn back the clock and undo these fundamental consumer protections so they can freely collect and profit from customer’s sensitive personal information. I will strongly oppose any efforts to roll back the broadband privacy rules either by Congress or at the FCC.”