Rosenworcel Seen More Likely Than Not to Vote to Approve ISP Privacy Rules
Democratic Commissioners Jessica Rosenworcel and Mignon Clyburn likely both have some leverage on the ISP privacy rules since neither FCC Republican is expected to vote for any of the rules at next week’s commissioner meeting (see 1610120063), industry observers on both sides said Tuesday. Rosenworcel didn’t support the set-top box order at the September meeting, which kept the FCC from approving it after months of build-up (see 1609290014). FCC officials say negotiations on the item are ongoing (see 1610180052).
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An important difference is the set-top order ran into bipartisan opposition on Capitol Hill (see 1609270048), the industry observers said. Rosenworcel likely has less political cover on ISP privacy, since the rules have support among Hill Democrats and Chairman Tom Wheeler attempted to move the rules to better reconcile them with the FTC privacy framework, thereby addressing administration concerns (see 1610070053).
Supporters of the order scheduled a media call for Thursday, led by Sen. Ed Markey, D-Mass. “Consumer advocates and public interest organizations from across the country will explain how the … proposed rule on broadband privacy would protect consumers and their families from aggressive data collection practices conducted by Internet Service Providers,” said a Tuesday news release. “ISPs have a unique window into our lives and, as we spend an increasing amount of time online, they are collecting and monetizing more and more of our data including when we use mobile apps and visit websites.”
“You never know until the vote is taken, but I hope that Rosenworcel will be supportive here,” said Susan Grant, Consumer Federation of America director-consumer protection and privacy. “We’re encouraged by the senators who have come out in strong support and the consumer groups and open internet groups and others who have made clear that this is such an important step in the right direction for consumers.” Grant said her sense was “things are still in a state of flux.”
“The latest revision to the privacy proposal seemingly may be a step in the right direction on a purely conceptual level, but it is not very helpful as a matter of reality,” said Randolph May, president of the Free State Foundation. “Because the reality is the categories of information requiring opt-in are much broader than necessary to protect consumer choice and, as importantly, broader than the framework the FTC applies. This will lead to inequitable regulation and consumer confusion. And, to boot, the FCC lacks authority to go as far as it proposes to go. I suspect Commissioner Rosenworcel understands this, and I’d like to see her take a stand and show her independence.” May said he's hopeful Clyburn might raise concerns as well.
“Based on the terse [FCC] fact sheet, the current privacy order is much improved over the initial draft, but still not what it should be,” said Richard Bennett, free-market blogger and network architect. “The principled position is to hold out for full harmonization with the website rules. Commissioner Rosenworcel’s fight for consistency in FCC rulemaking will go for naught if she caves in this close to the goal line.”
A former FCC official concerned about the rules said Rosenworcel still holds out hope of being confirmed to another term on the FCC. Confirmation votes on unanimous consent calendars during lame-duck congressional sessions “tend to happen at the very last minute and are the result of horse trading on unrelated matters,” the former official said. Spokesmen for the FCC and for Rosenworcel declined to comment.
Lobbying continues, meanwhile. AT&T raised some of the same concerns about the rules earlier raised by Google (see 1610040080). The carrier had the most concerns with the first-party marketing rules, when ISPs market affiliate services, and the web-browsing and app usage data provisions, AT&T officials told Nick Degani, an aide to Republican Commissioner Ajit Pai, said a filing in docket 16-106.
“Contrary to the FTC’s approach, the rules contemplated in the Fact Sheet would require broadband providers to obtain opt-out consent for virtually all first-party marketing uses of non-sensitive customer information, even if such marketing uses no customer information other than the customer’s name and address,” the AT&T filing said. The draft rules also appear to “classify all web browsing and app usage history as per se sensitive and would thus categorically prohibit broadband providers from using any such information for marketing purposes without opt-in consent,” AT&T said.
CTIA reported on meetings at the FCC with aides to all five commissioners. CTIA encouraged the agency to restrict the kind of data classified as sensitive, the filing said. “The Commission can take a much more tailored approach, which would achieve the Commission’s objectives while ensuring that consumers continue to benefit from new, innovative, and convenient products and services (and discounts) that depend on the use of such data.” CTIA also raised first-party marketing concerns. Officials from Verizon, AT&T, T-Mobile and Sprint were also at the meetings.
Officials with the Future of Privacy Forum reported on a meeting with Jennifer Thompson, an aide to Rosenworcel. The group discussed the importance of harmonizing the FCC and FTC rules, said a filing. “We discussed the online advertising ecosystem, and we recommended that any rules the Commission adopts should allow for approaches to de-identification other than aggregation, and should distinguish between sensitive and non-sensitive data.”