FCC Work on Privacy Seen Likely to Continue as House Takes Up CRA
Staff is widely expected to continue working on part of a revised FCC approach on ISP privacy, even as the House moves toward a likely vote on a Congressional Review Act resolution of disapproval, joining the Senate, which acted last week (see 1703270064). FCC Chairman Ajit Pai was mostly noncommittal last week in response to questions on the topic following commissioners’ meeting (see 1703230070). The FCC approved privacy rules in October, under then-Chairman Tom Wheeler, over dissents by Pai and Commissioner Mike O’Rielly (see 1610270036). Immediately after the November election of President Donald Trump, ISP privacy rules were seen as a top target of Republicans once Trump took office (see 1611090034) and that has happened in Congress and at the FCC. The commission didn't comment Monday.
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Pai said FCC rules should track FTC guidance in this area, “so one thing staff could do is begin working on draft language to that effect,” said Daniel Lyons, associate professor at Boston College Law School. “If the CRA passes, or if the agency grants the reconsideration petitions, we're back to status quo ante in 2015, with a gap in privacy law. So the next step would be to tee up a replacement NPRM that fills that gap in a way that doesn't create competitive imbalance. There's no reason not to begin work on that internally now, except perhaps overall resource constraints.”
Free State Foundation President Randolph May said he would be a surprised if staff isn’t continuing to draft a reconsideration order that pares back rules so they closely mirror FTC’s precedents. “Assuming that the CRA passes the House and is signed by the president, which I hope is the case, this will not prevent the commission from putting in place privacy protections that are not ‘substantially similar’ to those adopted by the Wheeler commission,” said May. “Regulations that mirror the FTC’s regime would not be substantially similar to those that may be voided by the CRA,” May said. “I bet work at the FCC continues apace on a privacy order because I don’t think Pai’s position is that there should be no privacy protections at all, just ones that are lawful, commonsensical, and don’t gratuitously put ISPs at a competitive disadvantage for no good reason.”
“At some point in this process, it will be necessary to issue an NPRM on replacement regulations restoring consistency between ISPs and the incumbent tracker networks,” said Richard Bennett, free-market blogger and network architect. “Rulemaking takes time, so it would be prudent for the FCC to convene a panel of ISPs in order to extract pledges to voluntarily abide by the FTC guidelines in the interim. These measures are probably underway at the agency.”
Industry officials note the FCC has time to wait if chooses to. It stayed data security rules that were to take effect March 2 (See 1703010069). Breach-notification requirements take effect upon Paper Reduction Act (PRA) approval or June 2, whichever comes last (see 1612150017). Notice and customer approval provisions take effect the later of PRA approval or Dec. 4, with small providers having an additional year to comply.
A telecom attorney active in the privacy rulemaking said there’s no reason for the FCC to spend too much time on the issue now. “It wouldn’t be unreasonable for the chairman to focus staff resources on other priorities and wait to see whether the House passes the CRA” resolution the lawyer said. “With the security rules stayed and the other rules subject to minimum wait times and CRA approval that surely isn’t coming at this point, he need not be in a rush.” A second lawyer active on privacy issues said the FCC likely has "binoculars" focused on Capitol Hill this week as the House considers a CRA resolution. “If that passes and the president signs the bill, the underlying rules all evaporate,” the lawyer said.
Pai won’t be able to act on petitions for reconsideration if the CRA passes both houses and is signed by Trump, said Dallas Harris, policy fellow at Public Knowledge. "I hope the chairman makes it clear that ISPs have substantive obligations under Section 222 [of the Communications Act] and that the commission intends to dutifully enforce those obligations, regardless of what happens with the CRA.”