Yesterday, by a partisan vote of 50-48, members of the U.S. Senate approved a Congressional Review Act (CRA) resolution that would invalidate broadband privacy rules adopted by the FCC in October 2016. The resolution, introduced two weeks ago by Senator Jeff Flake (R-AZ), now goes to the House where a nearly identical CRA measure unveiled last week by House Communications Subcommittee Chairwoman Marsha Blackburn (R-TN) is now pending.

In addition to repealing FCC rules that require Internet service providers (ISPs) to obtain opt-in consent from consumers before collecting and sharing certain types of "sensitive" data, including (among others) geolocation data, web browsing history and financial information, the resolution also bars the FCC from adopting similar rules in the future that govern ISP collection and disclosure of consumer personal information. Although the FCC acted earlier this month to stay certain provisions of the broadband privacy order that would subject ISPs "to a different standard than that applied to other companies in the Internet ecosystem" by the Federal Trade Commission (FTC), Flake and Blackburn contend that their resolutions are intended to eliminate any confusion that may result from the disparate treatment of ISPs and websites under the broadband privacy regimes of the FCC and the FTC.

Observers say the measure is likely to pass the House, although it remains unclear as to when a floor vote will be scheduled. Reaction to the Senate vote, meanwhile, was divided, with broadband network service providers celebrating the Senate's action and public interest groups such as the Consumers Union lamenting the vote as "a huge step in the wrong direction." As Senate Majority Leader Mitch McConnell (R-KY) explained that the resolution intends to overturn FCC rules that make "the Internet an uneven playing field," Senator Ed Market (D-MA) charged: "Republicans have just made it easier for American's sensitive information . . . to be used, shared, and sold to the highest bidder."