WASHINGTON, D.C. — Media reports indicate that that the FCC will stay the Broadband Privacy Order voted on by the Commission in October — allowing the Commission time to consider petitions for reconsideration of that order filed in January.
“A stay was inevitable,” said Berin Szóka, President of TechFreedom. “It could take the FCC months to resolve the petitions for reconsideration of the Broadband Privacy Order, because the real question isn’t a policy question but a legal one: does the FCC even have authority to regulate broadband privacy? We already know what the answer will be: Pai and O’Rielly have been entirely consistent in their view that the Genachowski FCC was wrong in reading Section 706 as an independent grant of authority and the Wheeler FCC was wrong to apply Title II to broadband. Once the FCC disclaims legal authority, the issue of broadband privacy will return to the Federal Trade Commission — where it belongs. But the FCC will need time to write an order on the legal authority underlying this order as well as the Open Internet Order. “
“Staying the rules won’t create any vacuum in consumer protection, as Senate Democrats claimed in a news conference earlier this month,” explained Szóka, “Just as there was no vacuum in the nearly two years it took Chairman Wheeler to issue the broadband privacy rule after reclassifying broadband. The FCC can enforce the statutory provisions of Title II directly — and will continue to keep a watchful eye on broadband privacy until the agency finally undoes its interpretations of Title II and Section 706. Not having regulations on the books primarily means that the FCC can’t impose monetary penalties for practices it hasn’t previously declared unjust and unreasonable under Section 201(b) — but it won’t stop the FCC from continuing to extract hefty concessions in settlements with companies if problems arise.”
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