Senate GOP Eyes Vote to Scrap Broadband Privacy Rules

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By Kyle Daly and Lydia Beyoud

The Senate may vote as early as March 22 to scrap the Federal Communications Commission’s privacy rules for broadband providers.

Telecom industry sources told Bloomberg BNA that Senate Republicans may schedule a floor vote this week on a resolution (S. J. Res 34) under the Congressional Review Act that would eliminate the rules.

Republican regulators say there is enough existing authority and potential for cross-agency cooperation between the FCC and the Federal Trade Commission to ensure privacy protections for customers of Comcast Corp., AT&T Inc. and other providers. Critics say scrapping the rules could remove a federal watchdog to ensure the providers protect private subscriber data.

Senate GOP leaders were still canvassing support for the resolution March 21.

“That’s being whipped as we speak, and we’ll see,” Sen. John Thune (R-S.D.) said when asked if proponents have enough votes to pass the resolution. “I would expect in the end that it will, but at the moment right now, I think we’re doing that assessment,” said Thune, the Senate Republican Conference chairman.

A spokesman for Senate Majority Leader Mitch McConnell (R-Ky.) declined to comment March 21 on when a floor vote might occur, but said that one hadn’t been scheduled. Senate Majority Whip John Cornyn (R-Texas) said the vote will come “hopefully this week.” The Democrat-controlled FCC voted to approve the rules last year against GOP objections that they strayed too far from Federal Trade Commission’s privacy standards that apply to online content companies. The regulatory disconnect, Republicans argued, could confuse consumers and limit broadband providers’ ability to compete against content companies in online advertising.

Congress or the Republican-led FCC are expected to replace the rules with ones that more closely replicate FTC standards. Unlike the FCC under the 2016 rules, the FTC doesn’t require affirmative consent, known as “opt-in,” for companies to collect and sell users’ browsing and app usage history, among other data.

Jurisdiction Gap?

Regulators at both agencies insist that voiding the rules won’t leave consumers without broadband privacy protections, even though the FTC can’t regulate common carriers under federal law. The FCC reclassified broadband providers as common carriers in 2015.

FCC Chairman Ajit Pai has said the FCC still would have the authority to regulate broadband providers’ privacy practices under its authority to regulate traditional phone companies.

The FTC isn’t sure yet what it will do on privacy and data security enforcement for broadband providers if Congress passes the resolution, Tom Pahl, acting chief of the FTC’s Bureau of Consumer Protection said March 21.The FTC and the FCC both “have a strong interest in making sure that whatever we do, that we are applying pressure to companies to make sure that their privacy and data security practices are not causing harm to consumers, regardless of how the legal structure plays out,” Pahl said at a Washington, D.C. event sponsored by the American Bar Association and the Federal Communications Bar Association.

[With assistance from Todd Shields.]

To contact the reporters on this story: Kyle Daly in Washington at kdaly@bna.com; Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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