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FTC and FCC Testify Before Congress Regarding Proposed ISP Privacy Regulations

The FTC’s testimony described the agency’s history of partnership with the FCC on consumer protection issues, including ongoing efforts with Do Not Call and robocall issues, previous work on pretexting, and cases related to unauthorized third party billing by mobile carriers. The FTC regulated Internet privacy for the last two decades, until the FCC reclassified broadband as a public utility in 2015, which shifted the authority over Internet Service Providers (ISPs) to the FCC. At the May 2016 hearing, FCC Commissioner Ajit Pai explained,So there is now a gaping hole in our privacy protections that needs to be refilled.”

Tom Wheeler, Chairman of the FCC, cited Section 222 of the Communications Act, which grants the FCC authority to protect consumer privacy from telephone companies. Now, a Notice of Proposed Rulemaking that was released in April 2016 would extend similar privacy protections to broadband communications. Under the proposed rules, ISPs would retain the ability to use customers’ basic information to market other communications related services, unless customers opt out. All other uses and sharing of consumer data would require consumers to make an affirmative choice to decide how their information is used. The regulations specifically focus on the personal information collected by broadband providers, not the privacy practices of “edge providers” which include the websites and other online services that consumers visit on the Internet.

Commissioner Pai dissented from the FCC’s proposed rules. Pai argued that the regulations single out ISPs by imposing more restrictions on them than on edge providers. He expressed concern that the rules could mislead consumers, quoting the FCC’s previous statements that consumers should have a uniform expectation of privacy. Pai testified, “This disparate approach does not benefit consumers or the public interest. It simply favors one set of corporate interests over another.”

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The Notice of Proposed Rulemaking is available at:

Read the Commissioners’ statements online: DOC-339327A1.pdf and DOC-339331A1.pdf.

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