ANA Calls on the FCC to Reconsider Online Privacy and Data Security Order

The Association of National Advertisers (ANA) today joined with several other major industry groups in filing a Petition for Reconsideration with the Federal Communications Commission (FCC), urging the agency to reconsider the Order adopted on October 27, 2016, which imposes onerous, sweeping new opt-in privacy requirements on broadband Internet service providers (ISPs) and violates First Amendment protections of commercial speech. 

The Petition states: “the FCC adopted the Order subjecting BIAS providers to restrictive rules that unnecessarily upended existing frameworks without adequate consideration of counter proposals. The Commission did this in a manner that exceeds its statutory mandate, which restricts protected free speech counter to the First Amendment, and used a process that did not allow adequate notice and comment from interested parties.” 

“The FCC’s sweeping privacy Order is unprecedented and misguided and would be damaging to the entire online advertising ecosystem,” said Dan Jaffe, Group Executive Vice President of Government Relations for ANA. “This massive attempted regulatory overreach by the FCC, if not overturned, will confront consumers with an avalanche of annoying and unhelpful advertising and breach notices. These rules are unnecessary because highly-effective existing privacy self-regulatory programs such as those carried out by the Digital Advertising Alliance (DAA) already provide the necessary consumer transparency, notice and choice for interest-based advertising.”

ANA was joined in the Petition by the American Association of Advertising Agencies (4A’s), the American Advertising Federation (AAF), the Data and Marketing Association (DMA), the Interactive Advertising Bureau (IAB), and the Network Advertising Initiative (NAI). The industry groups had provided the FCC with a proposal to provide consumers the opportunity to opt-out of BIAS providers’ use of customer proprietary information for certain purposes. The Petition notes that the final Order failed to appropriately address that industry proposal and states: “The FCC has made no attempt to demonstrate that the Order is narrowly tailored to serve the privacy interests that it asserts.”

Jaffe stated: “Subjecting virtually all web browsing and application use data to opt-in consent is completely inconsistent with its long-standing treatment by the Federal Trade Commission (FTC), the states, and the DAA. This approach also will undermine the financial underpinning that advertising provides in support of the online marketplace.” 

The industry groups noted that the timing of the final Order was totally insufficient to allow notice and comment on a materially different proposal from the original one adopted on March 31, 2016: “The Order was adopted less than a month after the Commission issued the Fact Sheet outlining a drastic change in its approach to BIAS providers’ use and sharing of customer information. The Fact Sheet did not provide appropriate details for interested parties a reasonable time to assess the new proposal and provide comments on it.”  

“The FCC’s actions were both bad policy and bad process. With the upcoming change in leadership at the agency, we are very hopeful that the FCC will reconsider the privacy Order,” said Jaffe. “The FCC’s Order would not only fail to serve the public interest, but would in fact harm it by substantially burdening consumers and businesses.”