Twenty-one public policy groups urged House and Senate leaders in a joint letter yesterday to “use the authority provided in the Congressional Review Act to rescind the [FCC]’s broadband privacy order.”  Adopted in October by a 3-2 partisan vote, the FCC’s broadband privacy rules require broadband Internet service providers to obtain affirmative “opt-in” permission from their customers before sharing sensitive personal data with advertisers and other third parties.  While the new rules incorporate many elements of the “sensitivity” model used by the Federal Trade Commission (FTC) in its oversight of websites and other edge providers, critics have taken issue with the FCC’s decision to include web browsing and app usage history within the category of sensitive information that is subject to the opt-in standard, arguing (among other things) that such categorization goes beyond the FTC regulatory model and also exceeds the FCC’s authority. 

Recipients of the letter include House Speaker Paul Ryan (R-WI), House Minority Leader Nancy Pelosi (D-CA), Senate Majority Leader Mitch McConnell (R-KY) and Senate Minority Leader Charles Schumer (D-NY).  Characterizing the FCC’s approach as “inconsistent with that of the” FTC, and predicting that the FCC rules are “likely to render harm unto consumers,” the groups advised the lawmakers that “Congress is fully justified in rescinding these rules both because the [FCC] order lacks proper legal grounding and because of the need to ensure real consumer privacy across contexts of user experience.”  In addition to questioning the legality of the 2015 Open Internet Order on which the FCC’s broadband privacy regime is based, the groups contend that the FCC’s reliance on Section 222 of the 1934 Communications Act, which covers consumer proprietary network information, is also incorrect, “as it applies specifically to voice services.”  (Although the Open Internet rules were upheld last July by a three-judge panel of the D.C. Circuit Court, Verizon Communications and other parties have since petitioned that court for an en banc rehearing.)  

Noting that FTC privacy standards for edge providers “[function] reasonably well, requiring opt-out in most instance and opt-in only for particularly sensitive kinds of data,” the groups declared:  “the FTC’s approach to privacy does a better job of balancing protection of consumer privacy online with economic incentives to innovate in consumer products and services.”  As such, the groups told the lawmakers that a repeal of the FCC’s broadband privacy rules “would promote both innovation and effective, consistent privacy protections in over-the-top, application, wireless and wireline markets,” while sending “a clear signal that the FCC has lost its way in interpreting the statute Congress gave to it.”  Although no comment was offered by the letter recipients, ranking House Energy & Commerce Committee member Frank Pallone, Jr. (D-NJ) reacted with dismay.  Stressing that “consumers should not have to worry about their . . . . personal information being shared without their permission,” Pallone promised to “vigorously fight against these combined efforts to harm consumers.”