WASHINGTON, DC — Today, FCC Chairman Tom Wheeler announced his latest move to more heavily regulate the Internet — a fact sheet summarizing rules for broadband privacy that would allow the FCC to significantly change how data is used online, and how broadband services evolve. Wheeler circulated the draft to his fellow commissioners today. The FCC is expected to vote at its March 31 meeting to issue this Notice of Proposed Rulemaking (NPRM).

“The FCC is ‘solving’ a problem entirely of its own making,” said Berin Szoka, president of TechFreedom. “There was no ‘regulatory vacuum’ over broadband privacy until the FCC ‘stole the FTC’s jurisdictional lunch money,’ using ‘strong net neutrality’ as pretext for a naked regulatory power grab.”

The FCC’s 2015 Open Internet Order unilaterally prevented the Federal Trade Commission from policing privacy, data security and other consumer protection issues raised by U.S. broadband companies — because the FCC  “reclassified” broadband providers as common carriers under Title II of the Communications Act. Common carriers are excluded from the FTC’s jurisdiction. The fact sheet released today indicates the FCC will require that broadband consumers opt-in to collection of data used for purposes other than marketing broadband. This is a departure from FTC rules, which typically only require that consumers are able to opt-out of data collection.

“We’ve seen this show before, and we know how it ends,” continued Szoka. “Just as the bogeyman of ‘paid prioritization’ drove a political feeding frenzy, the FCC loudly denounces certain privacy and business practices that sound bad, despite having little or no evidence that they don’t offer any consumer benefits that should be weighed against potential harms. But, as with the general conduct standard, the real work of ‘privacy regulation’ will be done piecemeal in the future. The rulemaking will largely be a red herring.”

“When Wheeler claims his proposed approach will be ‘flexible,’ he really means the Chairman and Enforcement Bureau chief will retain unfettered discretion to make essentially arbitrary decisions about the future of broadband,” concluded Szoka. “The FCC will be replicating everything pernicious about the FTC’s approach, minus the analytical rigor. In its 2014 Terracom NAL, the FCC began inventing its own versions of the FTC’s unfairness and deception standards. But the FCC will no doubt stubbornly refuse to import the tests the FTC established long ago for ensuring that these sweeping powers do not become regulatory blank checks. And even if it paid lip service to those tests, the FCC is even more likely than the FTC to simply ignore them, because it has even more leverage than the FTC to coerce ‘voluntary’ settlements — and thus avoid the adversarial litigation that does the real work of the common law. Finally, what begins today as regulation of broadband providers will eventually grow to include other Internet companies, too — if only through the power the FCC has claimed to regulate all communications companies via Section 706.”

TechFreedom is leading a group Silicon Valley innovators and entrepreneurs as an intervenor challenging the FCC’s 2015 Open Internet Order.

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We can be reached for comment at media@techfreedom.org. See our other work on privacy regulation, including:

  • Out of the Frying Pan & into the Fire: The FCC Takes over Privacy Regulation, a TechFreedom working paper
  • “FCC Privacy Regulation Should Follow FTC’s Consumer Protection Standards,” a statement from TechFreedom

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