Cable, Telco Officials Mix It Up With Critics on Privacy, Net Neutrality, Title II

Americans care deeply about online privacy and want strong protections, said Gigi Sohn, Open Society Foundations fellow and a former aide to previous FCC Chairman Tom Wheeler. She said Republicans made a "huge tactical mistake" in using the Congressional Review Act (CRA) "nuclear option" to repeal privacy rules, which targeted broadband ISPs. "People were really upset. I believe that with one or two more days, we would have won the House. As it was, we flipped 15 Republicans."

The CRA repeal returned privacy to its pre-2016 state, said Kathy Zachem, Comcast executive vice president. "It took us back to having the same protections across the internet ecosystem for everybody involved so that the consumer knows exactly what protections they have and that those protections will be abided by everybody," she said. "It took us back to the status quo of level playing field regulation." Despite "scare tactics," she said, "we are simply looking for the expert agency," the FTC, "to go back to regulating the internet across the board, as it did for years without a problem."

The CRA repeal also scrapped "deregulatory" aspects of the privacy order, said Angie Kronenberg, general counsel of Incompas. She cited an annual customer proprietary network information certification duty, which the FCC had eliminated: "We were pretty disappointed in the sledgehammer approach."

AT&T's research suggests “99 percent of Americans don’t know what CRA is, and 99 percent of Americans don’t understand all the wrangling going on in D.C. and what’s going on at the FCC and what Title II is," said Joan Marsh, senior vice president. "They want to know their privacy is going to be protected in a clear and comprehensive way. We had that at one point at the FTC. They had a framework that was working, and then of course Title II banged into the situation. It divided the world between ISPs and everybody else. And that’s where things started to go wrong, and we need to get it back to there.” Sohn said "the way to get to the level playing field is not to take away the best protections consumers ever had. The way to get to the level playing field is to raise the bar, not take it away."

Zachem said the FCC tried to "regulate the unknown" through guesswork. "There’s a difference between regulation trying to cure problems versus regulators anticipating problems that are going to occur in a made-up world and regulating in anticipation of that." Marsh said Sohn's desire for clear rules and a level playing field wouldn't occur under the current statutory framework. "Let’s all join and go to the Congress and work on that clear set of rules that applies to everybody.” Sohn replied, "I'm with you."

"Everybody is dancing around what the big debate is," Sohn said. "There’s a lot of agreement on what the ground rules should be both for privacy and net neutrality.” The Title II debate is about "what authority the FCC should have. Everybody loves the FTC. ... I’d love to give the FTC more power," she said: "This debate is about should the [FCC], which since 1934 has been tasked with overseeing communications networks, have any oversight role at all" here.

Marsh agreed the fight was about authority. "On internet privacy and on net neutrality, it’s not there. In fact, Section 230 very specifically says it will be the policy of the United States to allow the internet to operate unfettered by state and federal regulation, " she said. "There’s a lot of fettering in Title II,” she quipped.

"This is not regulating the internet," Sohn said. "AT&T, love you guys. Comcast, very powerful. You guys are not the internet. You provide the access to the internet and that’s different. So stop saying this is about regulating the internet. Section 230 does not apply." The question is how "bottleneck companies like yours who provide access to the internet" are regulated, she said. "This is about regulating the bottleneck access point. ... The American people do not want you guys to self-regulate."

Zachem said parties should stop fighting about authority and focus on hammering out agreement on popular consumer protections and prodding Congress to pass legislation. Kronenberg was skeptical: "There seems to be a will but I don’t know that there’s a way, and the reason there isn’t a way is bigger than these issues.” Without a new law, Title II was the only way to institute real net neutrality protections, she said.

Marsh agreed legislation was difficult but said parties should seek targeted changes. "There’s very significant progress that we can make in targeted legislation," she said, noting 2009 incentive auction and FirstNet provisions. She also noted the U.S. Court of Appeals for the D.C. Circuit's recent ruling upholding the open internet order declared that Title II was voluntary. "What the court said is if the internet service provider under Title II is holding themselves out as offering a nondiscriminatory service, then, sure, those rules apply. But if the ISP holds themselves out as editing or filtering or in any other way curating the internet experience, you opt out, you are outside the Title II rules. So I just fundamentally disagree that Title II delivers what Angie said it will deliver.”

Sohn pushed back. "What the order said was that if you don’t want to hold yourself out as an ISP, if you want to hold yourself out as something, providing the top 100 websites, you’re not under Title II. Feel free, if you want AT&T to become that. But if you’re advertising yourself as an internet service provider providing access to the entire internet, then you have to operate under Title II. So I think you’re misconstruing that a little bit.”