'Fix Is In' on FCC ISP Privacy Rules, O'Rielly Says

The FCC is seeking comments but the majority that voted to approve an ISP privacy NPRM March 31 will impose rules that closely follow the proposal, Commissioner Mike O’Rielly predicted on a TechFreedom podcast. “The fix is in.” O’Rielly and Commissioner Ajit Pai voted against the NPRM (see 1603310049). Meanwhile, the Association of National Advertisers (ANA) filed a letter asking the FCC to extend by 60 days the deadline for commenting. And a commission representative defended the proposal.

The FCC asks hundreds of questions, with comments due by May 27 on the NPRM, O’Rielly said Tuesday (see 1604040032). “We already know where this is going,” he said. “It’s drafted in a way so we’ll get to the exact outcome that the chairman wants.”

The rules will be harmful if one believes the information ISPs share is beneficial, O’Rielly said. “Yes, it is personal information in some cases.” But that information is reducing costs for consumers and helping ISPs launch new services, he said. The FCC is “closing off the doors” to use of the information, he said: The agency is “saying that this information is so important that we know better than you, we know better than the consumer.” The net effect will be to change the economics of the Internet and how it operates, he said.

O’Rielly said that when he voted against last year’s net neutrality order, he warned that the FCC opened the door to imposing privacy rules on ISPs that differed from those faced by other companies. “It was one of the reasons I voted no on net neutrality,” he said. “Now what are we doing? We’re saying, ‘Oh, we have to do this. Look at this big gaping hole that we created ourselves. We have to fill this hole.'”

This NPRM runs 147 pages in the Federal Register and “contains numerous proposed requirements with potentially complex impacts regarding the privacy of collected and user data,” ANA said in the letter. “Because the potential implications of the NPRM for advertising and marketing interests are significant and far-reaching, they require sufficient and thoughtful analysis. However, the timeline provided by the Commission does not permit such analysis to be adequately concluded.”

“The proposal is about permission, not prohibition," an FCC spokeswoman said in response to O'Rielly. "It simply says ISPs need to let their customers know what personal information they are collecting, how it is being used and under what circumstances it would be shared or sold to other entities -- and ISPs must let their customers choose what the ISPs do with their customers’ personal information. The FCC has a clear Congressional mandate to ensure that telecommunications providers protect the confidentiality of their customers’ information. The chairman’s proposal will give greater clarity to both consumers and companies going forward.”

Jeff Chester, Center for Digital Democracy executive director, told us O’Rielly should read the record when it comes in to get a better idea of how ISPs are using data. “He will learn that the ISPs have assembled a far-flung data collection apparatus that tracks consumers regardless of device,” Chester said.

Chester said the ANA request for more time wasn't a surprise. “Its basic business model is unfettered, unlimited collection of consumers’ data,” he said. The ANA’s strategy is “delay, delay, delay” until Tom Wheeler is no longer chairman of the FCC, Chester said. “Stealing data” is one of America’s few growth businesses, he said.

No one is “closing off the doors” to uses of data, emailed Public Knowledge staff attorney Meredith Rose. “At its core, the disagreement on this issue comes down to this: one side believes that ISPs have a basic and fundamental right to leverage their gatekeeper status in one market (broadband internet service provision) in order to cross-subsidize their entree into a separate market (advertising),” Rose said. “We disagree. When a company opens a new venture, they don’t get to apply the least common regulatory denominator to all of their existing business areas.” Ultimately the “good” being traded in “isn’t a random widget,” she said. “The product is people.”