FCC Likely To Explore Jurisdictional Issues in Privacy Rulemaking, Experts Say
The FCC appears likely to cast a wide net in proposed ISP privacy rules, said Mark Brennan, telecom lawyer at Hogan Lovells, during an FCBA panel Thursday evening after remarks by Wireline Bureau Chief Matthew DelNero. DelNero offered a preliminary glimpse of the rules, which are expected to get a vote at the FCC’s March 31 meeting (see 1603030066).
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DelNero referenced non-FCC statements, practices, orders, decisions and industry best practice, many of which tie into the work done by the FTC for more than a decade, Brennan said. “What I read into that is you’re going to see a focus on drawing in a lot of data from outside sources,” he said. “This is not going to be a proceeding where you look through the FCC tunnel lens and say ‘OK, what has the FCC said, end of story.’ You’re going to have to think much more broadly.”
Section 222 of the Communications Act, particularly 222 (b), contains many procompetition provisions, said Harold Feld, senior vice president at Public Knowledge. “What I would like to hear more about is [whether] the FCC [is] going to be thinking about this in terms of information that online providers, such as competing video providers, need to expose as part of serving the consumer,” Feld asked. “Is that going to be protected in the same way that they traditionally protected services like alarm services.”
The FCC appears to feel that it's “the right agency” with the “right statute” to take on ISP privacy, Feld said. “While they will certainly continue to work with the FTC and view them as experts about what to do, it is the FCC’s job and they’re going to do their job.”
Monica Desai, telecom lawyer at Squire Patton Boggs, said she is encouraged that DelNero indicated the FCC is looking at its statutory authority. “I do question the idea that there can be so much authority based on the wording of a caption in part of the statute,” she said.
DelNero never said “we like what the FTC has done and we think that’s good enough, we’re just going to seek comment on that and be done with it,” Brennan said. “The question is not whether to mimic the FTC and go home but to what extent is this FCC looking to extend the privacy and security framework that the FTC has developed.” Whether that’s the right policy “is an entirely different question,” he said. It makes sense for the FCC to also examine its voice customer proprietary network information (CPNI) rules, Brennan said. “Those rules are so outdated that I think I would start with a giant X through that entire section of the rules and then build from there.” The last time the FCC looked at those rules was more than 10 years ago, he said.
Feld said ISPs collect information like cellphone numbers not collected by edge providers like Google. “I do not have to give Google my Social Security number,” he said. “I frequently do have to give it to a cable or broadband provider so that they can do a credit check.”
There are questions about FCC jurisdiction, Brennan said. “We have three FCC commissioners that have taken the position that 222 (a) imposes some duty on carriers other than CPNI,” he said. “That’s it. The rest of the issues are open to debate and will be teed up, presumably, as part of the NPRM.”