WASHINGTON, DC — Yesterday, TechFreedom and the Competitive Enterprise Institute filed reply comments with the FCC urging the agency to reconsider its rushed attempt to regulate broadband privacy and data security. The joint filing warns:

The FCC is doing far more than simply replicating the FTC’s approach in an area that the FTC can no longer regulate (because of the FCC). The FCC is not merely replacing case-by-case enforcement of general standards with a more specific rulemaking, it is inventing new requirements based on new substantive standards that would give the FCC even more discretion than the sweeping discretion already enjoyed by the FTC.

When the FCC reclassified broadband providers as common carriers under Title II of the 1934 Communications Act in the Open Internet Order, the Federal Trade Commission automatically lost jurisdiction over them, because the FTC Act does not cover common carriers.

“This is the clearest example of the FCC applying the most cynical political maxim: ‘Never let a good crisis go to waste,’” said TechFreedom President Berin Szóka. “The FCC created this crisis by invoking Title II in its most extreme form: reclassifying the entire broadband service, rather than the back-end. This meant the FTC lost any ability to continue its consumer protection work on privacy and data security over broadband. That wasn’t necessary for the FCC to issue its net neutrality rules — which weren’t necessary, either.”

“Chairman Wheeler claimed the FCC’s approach would be consistent with the FTC’s, but then he moved the goalpost,” continued Szoka. “The FCC has moved the goalposts once again. The agency isn’t merely stepping into the FTC’s shoes, the FCC is replacing its case-by-case enforcement with rigid rules that proscribe activity that is neither unfair nor deceptive. By decoupling regulation from any standard of consumer welfare, the FCC is fundamentally changing the way the Internet is governed. By so shamelessly exploiting a crisis of its own invention, the FCC is reaching new heights in administrative chutzpah.”

”It’s not too late for the FCC to rethink its approach,” continued Szóka. “It can easily harmonize its approach with the FTC’s unfairness and deception standards. And it doesn’t need formal rules to protect consumers. Policy broadband privacy case by case on the FTC’s standards would focus the FCC’s attention practices that actually harm consumers, avoiding unnecessary formal rules and ensuring that government doesn’t take sides in competitive battles. Such harmonization would ensure that, if the FCC ultimately loses on reclassification at the full D.C. Circuit or Supreme Court, there will be a seamless transition back to the FTC’s oversight. The FCC should pause the rulemaking until those courts have ruled or declined to hear an appeal. And at a minimum, the FCC should at least address the many legal, technical and economic questions that have been raised by commenters in a Further Notice of Proposed Rulemaking to allow for full public input.

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

  • Our statement on the FCC’s announcement of a plan to regulate broadband privacy
  • 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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