FCC Stay of Privacy Rules Is a Win for Advertisers and Consumers

March 2, 2017

Yesterday, the Federal Communications Commission (FCC) issued a temporary stay of the online privacy and data security regulation passed last year which would have subjected internet service providers (ISPs) to a different standard than that applied to other companies in the internet ecosystem by the Federal Trade Commission (FTC). The regulation would have gone into effect today, and the Commission voted 2-1 on party lines to stay the rule.

The Commission’s rationale for issuing the stay focused on the stark differences between the FCC rule – which singled out ISPs – and the FTC’s standard for all other actors in the online space. In a press release, the FCC stated, “The FTC had proven to be an effective cop on the beat for safeguarding digital privacy. But in 2015, the FCC stripped the FTC of its authority over ISPs’ privacy and data security practices when it adopted the Title II Order.”

Acting FTC Chair Maureen Ohlhausen, who raised serious concerns about the FCC rulemaking prior to its adoption, weighed in positively on the stay. In a joint statement, Ohlhausen and FCC Chairman Ajit Pai noted that the online privacy of American consumers would best be protected through a comprehensive and consistent framework. They stated, “We still believe that jurisdiction over broadband providers’ privacy and data security practices should be returned to the FTC, the nation’s expert agency with respect to these important subjects. All actors in the online space should be subject to the same rules, enforced by the same agency.”

Throughout the rulemaking process, ANA actively opposed this regulation and filed numerous comments with the FCC about our concerns. Most recently, we filed a Petition for Reconsideration asking the Commission to overturn the rule on the grounds that it imposes sweeping new opt-in privacy requirements on ISPs and that it violates First Amendment protections of commercial speech. We emphasized that this rulemaking would be very harmful, not only for businesses but consumers as well who would be faced with a drumbeat of onerous opt-in and data breach notices. We agree that the FTC, not the FCC, should be the key regulator in charge of online privacy, and we are very pleased that the Commission will be taking the time to thoroughly review this critical area. We continue to advocate for this onerous regulation to be completely overturned.

If you are interested in hearing from FTC Acting Chair Ohlhausen regarding the online privacy debate as well as a range of other important issues for the advertising community, we urge you to join us at the 13th Annual Advertising Law & Public Policy Conference, March 28-29 in Washington, D.C., where she will be a keynote speaker. As yesterday’s FCC action demonstrates, the world of legislation and regulation in Washington is encountering a period of major transformation, and advertisers need to be as informed as possible to keep up with these rapidly changing times.

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