March 20, 2017
Last October, the Federal Communications Commission (FCC) passed historic rules that protect the privacy of Americans’ online activity. The FCC’s rules require Internet service providers (ISPs) like Comcast and AT&T to seek the affirmative consent of their customers before using or disclosing sensitive information, including web browsing and app usage history, for marketing and other non-service-related purposes.
The FCC’s effort was a major victory for consumers, but ISPs steadfastly opposed the rules because they protect a customer’s web browsing and app usage history—both of which are potential sources of advertising revenue. It was therefore no surprise when, in January, 11 companies and industry trade associations petitioned the FCC to repeal or weaken the rules. The FCC should reject these industry petitions.
Last week, we filed two oppositions to the companies’ requests for reconsideration—one on OTI’s behalf and one on behalf of 28 consumer organizations that support the privacy rule. The FCC typically grants reconsideration only when presented with new facts or arguments that were not previously addressed; the ISPs and their trade associations merely repeated prior arguments already rejected by the FCC in October. That alone merits rejection.
The only factual change since October actually supports the FCC’s privacy rules. In February, the TV manufacturer Vizio paid a $2.2 million settlement to the Federal Trade Commission (FTC) for improperly collecting the viewing habits of Vizio TV owners. The FTC argued for the first time that TV viewing history is “sensitive” information, which bolsters the FCC’s argument that browsing and app usage history is “sensitive” information that warrants additional protection.
However, there has been one intervening political change since October: the election. A new president means a new FCC chairman, and President Trump’s pick for FCC chair, Ajit Pai, is a steadfast opponent of the FCC’s privacy rules (and many other rules). Now that he is in charge of the agency, he could repeal or substantially modify the rules.
Meanwhile, Congress is considering taking a sledgehammer to the FCC’s rules through a little-used legislative tool called the Congressional Review Act (CRA). The CRA allows Congress to pass a “resolution of disapproval” that would repeal the FCC’s privacy rules and prohibit the agency from enacting similar rules. It’s a blunt tool that, before this year, had only ever been invoked successfully once. However, newly-empowered Congressional Republicans have started using the CRA to repeal a wide variety of Obama-era rules that protect consumers.
If the resolution passes, the rule would simply cease to be. There would be no explanation and little to no ability to challenge the decision in court. Most importantly, there would be no rules on the books protecting the privacy of broadband consumers and no ability for the FCC to rectify the situation.Congress and Chairman Pai should stand with consumers and reject these industry efforts to repeal the privacy rules.