FCC Addresses ISP Privacy Rules in Light of CRA
The FCC released an order “taking a necessary procedural step so that the Code of Federal Regulations contains an accurate reflection of the Commission’s current privacy rules.” The Thursday order clarifies that the FCC’s pre-2016 privacy order rules that apply…
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to wireless and wireline carriers have been reinstated. The FCC said the step was necessary after Congress rejected ISP privacy rules approved under former Chairman Tom Wheeler, through a Congressional Review Act resolution (see 1704040059). FCC Commissioner Mignon Clyburn partially dissented and partially concurred. “Because Congress has invalidated the 2016 Privacy Order, we simply make clear that the privacy rules that were in effect prior to 2016 are once again effective,” Chairman Ajit Pai said in a statement. The Wireline Bureau “was slated to perform this ministerial act,” he said. “But when Commissioner Clyburn asked for this matter to be addressed at the Commission level, we brought it up for a Commission vote.” Clyburn said in a statement it was “facile and bull-headed” to move forward on the order without seeking comment on how the CRA affects the proceeding. Clyburn noted this was the first time the CRA has been used to reject an FCC order. “I must disagree both with the simplistic treatment of the Congressional Review Act found in this item, and more significantly, leaving out any requirements for broadband providers,” she said. “I believe the better course would have been to close out the existing proceeding (or initiate a new proceeding) to come up with another holistic approach to voice and broadband.” Key questions remain unanswered, Clyburn said. “Are aspects of the legacy voice rules substantially similar to the harmonized rules the Commission adopted last year?” she asked. “Does the CRA work to undo the modified adopted rule but leave in place the extinguishing of the original rule? We do not grapple with any of these fundamental interpretational issues.” Commissioner Mike O’Rielly voted for the order but didn’t issue a statement. The 2016 rules, opposed by the two FCC Republicans, were seen as ripe for early rejection by the FCC, absent the eventual CRA, in the days after Donald Trump was elected president (see 1611090034). “The FCC has provided confirmation for consumers that broadband providers are obligated to protect their customers' private information," a USTelecom spokeswoman said. "Consumers deserve and expect consistent, clear privacy rules that don’t stifle economic growth or innovation and apply uniformly across the entire internet ecosystem.”