Congress Shows Concern over FCC’s Privacy Regulation Plan

May 12, 2016

The Senate Judiciary Committee’s Subcommittee on Privacy, Technology and the Law took a proactive step in protecting businesses from overly restrictive government regulations by holding a hearing Wednesday to debate the merits of the Federal Communication Commission (FCC)’s newly proposed privacy rules. At the hearing, Chairman Tom Wheeler and Commissioner Ajit Pai from the FCC and Chairwoman Edith Ramirez and Commissioner Maureen Ohlhausen from the Federal Trade Commission (FTC) testified about the FCC’s expansive Notice of Proposed Rulemaking (NPRM) on broadband privacy which is currently open for public comment.

A major question discussed at the hearing is whether FCC involvement in the online data privacy arena is necessary. The FTC already has regulatory enforcement authority over privacy under Section 5 of the Federal Trade Commission Act, which prohibits ‘‘unfair or deceptive acts or practices in or affecting commerce.” While the FCC is claiming that it should have enforcement authority over ISPs and internet companies, Commissioner Ohlhausen pointed out in her opening statement that, in the past, the FTC has actually brought enforcement actions against these types of companies. Another critical distinction made by the FTC’s representatives at the hearing was that the FCC appears to treat all data the same in its proposal; the FTC has been more nuanced on this point in the past. Commissioner Ohlhausen explained that the FTC believes sensitive data, like health data or children’s data, requires opt-in consent for use but non-sensitive data does not. To require this would be burdensome, costly, and would not reflect widely diverging consumer preferences regarding data collection and use.

To echo the point that the FTC, not the FCC, should be the standard-bearer for privacy regulation, a coalition of advertising industry groups submitted a letter to the Subcommittee in advance of Wednesday’s hearing. In the letter, ANA and other trade associations assert that the existing voluntary self-regulatory standards supported by FTC enforcement are the appropriate tool to govern the dynamic and interrelated online content and advertising ecosystem. Furthermore, we point out that consumers and industry benefit when one agency clearly and strongly takes the lead on privacy regulation and enforcement, and that the FCC’s NPRM is out of step with existing privacy frameworks and would undermine the ad-supported internet. These points were all reiterated in Wednesday’s hearing by both the FTC and FCC Commissioner Ajit Pai’s testimony.

As we blogged about earlier this week, even though ANA was denied an extension of time to respond to this NPRM, we will be submitting comments to reflect our opposition to the FCC’s broad regulatory overstep. We are grateful to FCC Commissioner Pai for noting at the hearing that it would be very helpful for trade associations like ours, with hundreds of members that need to be canvassed for their opinions on this matter, to be given additional time to file. ANA will be following up with members in the next few days to seek additional input and finalize our comments for the FCC.

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