Comments filed late last week in response to proposed FCC rules that would impose certain privacy mandates on broadband Internet service providers (ISPs) depict divergent views among consumer groups that support the rules and carriers that believe the proposed rules exceed the FCC’s jurisdiction and will lead to consumer confusion.  Also, on the eve of last Friday’s comment deadline, three House Republican leaders lauded the FederalTrade Commission’s (FTC’s) handling of Internet privacy issues in urging FCC Chairman Tom Wheeler to reconsider the FCC’s approach to broadband privacy.  Declaring that “creating a disparate set of rules” for broadband ISPs “is wrong,” the lawmakers claimed that the FCC’s Notice of Proposed Rulemaking (NPRM) “ignores the last four decades of development in the U.S.”

Adopted by a 3-2 vote on April 1, the NPRM seeks to implement Section 222 of the Communications Act of 1934 with respect to broadband ISPs. Section 222 outlines the duty of telecommunications carriers “to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers.” Resembling consumer proprietary network information rules that the FCC has applied to telephone service providers, the draft rules would require ISPs to obtainsubscriber consent before collecting and sharing certain data with advertisers and other third-parties, and would separate consumer data into three categories (inherent, opt-out, and opt-in) that would require different levels of consent.  In a press release accompanying the NPRM, the FCC predicted that the proposed rules, once enacted, would give broadband consumers “meaningful choice, greater transparency, and strong security protections for their personal information collected by ISPs.” 

Endorsing the NPRM, the American Civil Liberties Union told the FCC that “there is no reason” the privacy protections of Section 222 should not be extended to broadband ISPs, asserting:  “when an American picks up the phone to call a suicide hotline . . . or a cancer doctor, he or she doesn’t have to worry that the phone company will sell that information to others.” Similarly, in voicing support for the rules, a coalition of public interest groups led by Public Knowledge cautioned that an ISP “can paint a detailed, composite picture of a user’s life solely from basic header information such as IP addresses, ports and timing.”  Fearing, however, that the proposed rules “will lead to an undue burden on our nation’s telecommunications providers,” the National Association of Manufacturers warned that the proposed rules “will take away critical resources that would otherwise be applied to further investment in our nation’s broadband infrastructure on which manufacturers depend to fuel their innovation pipeline.”  While lamenting that the proposed rules “single out [ISPs] for a unique set of burdensome requirements,” Verizon claimed that the proposal “will harm consumers by creating confusion, promoting insecurity and depriving customers of the benefits of competition.” 

Meanwhile, House Commerce Committee Chairman Fred Upton (R-MI) joined House Communications & Technology Subcommittee Chairman Greg Walden (R-OR) and House Commerce, Manufacturing & Trade Subcommittee Chairman Michael Burgess (R-TX) in highlighting the success of the Federal Trade Commission (FTC) in applying an enforcement-oriented approach to Internet privacy to all players throughout the Internet ecosystem.  Observing that the NPRM, in combination with Open Internet rules adopted by the FCC last year, effectively creates “a two-tiered Internet” that removes broadband ISPs “from the FTC’s jurisdiction,” the lawmakers told Wheeler that the FCC’s proposal for ISP-specific privacy rules “seems to miss the point.”  Instead the lawmakers recommended “a more consistent privacy experience for consumers” that “[mirrors] the FTC’s successful enforcement-based regime,” adding that such an approach “can work to protect consumers without injecting new complexity and uncertainty into the Internet economy.”