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By Lydia Beyoud
Jan. 20 — A coalition of 59 privacy and consumer advocacy groups urged the Federal Communications Commission (FCC) to move forward with its net neutrality-related privacy rulemaking for broadband providers, before the matter gets put on a back burner by other policy priorities during agency Chairman Tom Wheeler's likely final year in office.
In a joint letter sent Jan. 20, the American Civil Liberties Union, Consumer Action, Public Knowledge and the Open Technology Institute at the New America Foundation, among others, asked the FCC to take on the mantle of being “a brawnier cop on the beat” on privacy issues. The letter called for the FCC to incorporate rules requiring consumer notification of data breaches and to hold broadband providers accountable for failure to take sufficient precautions to protect personal data collected from users.
The coalition hopes to counterbalance a concerted lobbying effort by Internet service providers by presenting consumer interests, Public Knowledge Senior Vice President Harold Feld told Bloomberg BNA.
Wheeler has said that commencing the rulemaking is among his top priorities for 2016. The matter relates to the FCC's controversial 2015 Open Internet rules, in which a Democratic majority of the five-member commission voted to reclassify broadband Internet service providers under the more stringent regulatory regime of Title II of the Communications Act of 1934.
At the February 2015 net neutrality vote, the FCC said privacy rules under Section 222 of the act, originally written to protect customer proprietary network information (CPNI) collected by telephone carriers, did apply to Title II broadband providers, but said it would adapt the rules for the Internet ecosystem at a later date.
FCC staff from the Office of General Counsel, the Wireline Competition Bureau and the Wireless Telecommunications Bureau have been meeting with broadband providers, Internet and technology companies, and public interest groups to discuss the issue. Because there is no open docket on the matter, the parties are not subject to the FCC ex parte disclosure rules.
An FCC spokeswoman declined to comment on when the rules could be issued or the nature of the informal discussions, but did say the chairman “is eager to hear from all stakeholders on the right path forward for ensuring consumer privacy on broadband networks.”
The talks Public Knowledge participated in touched on high-level principles for broadband privacy, with staff asking for specific information on privacy matters that raise concerns, rather than just theoretical practices, said Feld. The ultimate goal appears to be how to figure out how to take a “balanced approach” with the rules, he said.
Yet the definition of what constitutes a balanced approach is likely to be rife with dispute, if the volatile campaigns both for and against the Title II rules serve as an indication.
The FCC will likely consider several avenues for potential rules as part of a forthcoming notice of proposed rulemaking, Jim Halpert, a partner with DLA Piper LLP in Washington, told Bloomberg BNA.
The easiest of these would be for the FCC to “revert to the status quo” by adopting consumer protections similar to those existing under the Federal Trade Commission (FTC) Section 5 regime governing unfair or deceptive acts or practices, said Halpert, who heads the firm's privacy and cybersecurity practices.
The FCC reclassification blew a hole in the FTC's ability to bring enforcement actions against Title II common carriers. However, the two agencies released a signed memorandum of understanding (MOU) on consumer protection Nov. 16, 2015, in which they agreed to work together on issues related to deceptive, unfair, unjust or unreasonable practices by Title II broadband providers .
“It would be odd to have an MOU between two agencies and then have them enforce different standards under the MOU,” Halpert said.
Alternately, the FCC might apply Sec. 222 while forbearing from much of the CPNI framework, or it might consider a wholly different interpretation of the rules in the context of broadband services, he said.
Though there is room for significant debate on the policy avenues the FCC could take, it is unlikely the proceeding, when it is started, leads to a broad rethinking of the U.S. privacy framework, Halpert said.
“This is a peculiarity of the neutrality order's effect on common carriers since reclassification,” he said. “This proceeding will be its own animal.”
A review of the CPNI rules as they apply to telephone services could also get wrapped into the proceeding, Halpert said. The last major changes to the rules occurred in 2007, and the telephone services market looks significantly different now than it did then, he noted.
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