“Don’t Bother Us with the Facts.”

May 10, 2016

“Don’t bother us with the facts.” That seems to be the message the Federal Communications Commission (FCC) is sending by its recent summary denial of ANA’s and numerous other groups’ request for additional time to comment on the FCC’s sweeping Notice of Proposed Rulemaking (NPRM) on broadband privacy.

As we noted previously, on April Fools’ Day the FCC published a 147-page NPRM on privacy. The FCC now claims jurisdiction over a variety of new service providers that previously had been regulated by the Federal Trade Commission (FTC). This NPRM applies Customer Proprietary Network Information (CPNI) privacy rules and regulations previously reserved for telephone companies to broadband internet service providers (ISPs), and then proposes multiple new highly restrictive requirements.

Cable operators, advertisers, and other groups interested in privacy issues asked for additional time to review the NPRM because there are more than 500 different detailed and often technically complex questions raised in the document. Yet the FCC only provided a mere 57 days for comments to be filed – that means almost 10 questions must be answered per day! Fifty-seven days is not nearly enough time for our more than 700 members to first adequately analyze the document, discuss their concerns with us, then allow us to carefully synthesize the views of all of our members, and then provide the most carefully considered and thoughtful comments to the FCC. The FCC’s adherence to an unfairly short deadline is a poor attempt to protect the public interest.

As they say, the devil is in the details. Knowing this, it would have been impossible for ANA to formulate a meaningful response prior to the publishing of this NPRM – yet that is what some of our critics are claiming we should have done. We have been anticipating FCC action, that’s true; but we surely didn’t know precisely what the FCC would propose and the questions it would ask until it did so.

The FCC needs – and the public deserves – sufficient time to understand fully the new privacy landscape the FCC is proposing. We need to be able to analyze how these proposed rules would interact with current law, what self-regulatory activities are already in place and working, and many other matters that require thoughtful comment. This type of privacy regulation is a relatively new policy arena for the FCC, and we believe the CPNI NPRM could lead to hasty, ill-considered, and detrimental privacy policy changes.

It would now be a waste of time to appeal the FCC’s denial of our extension request. However, within the unreasonably short time provided, we will do our best to triage the issues of key importance to the advertising industry and address them in our comments. ANA will urge the FCC not to impose obligations inconsistent with the FTC’s approach, lest advertisers become subject to inconsistent or duplicative regulation. It’s not enough just to have the FCC “harmonize” its own internal rules and enforcement; it’s necessary to ensure that privacy efforts by the government – if taken – are coordinated and not inconsistent and overly restrictive. Most importantly, ANA will remind the FCC that “there’s no free lunch,” and that consumers receive information today at little or no cost in return for companies’ ability to reach them via directed advertising that surveys show are acceptable to consumers. This approach has fostered a healthy, vibrant, and economically valuable internet and mobile media ecosystem that must not be allowed to be severely undermined.

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