Administration Favors GOP Privacy CRA Now Passed by Both Chambers of Congress

The White House is inclined to sign off on the Capitol Hill GOP measure to kill FCC ISP privacy rules, the administration said in a message Tuesday, the day the House signed off on the measure after Senate approval last week (see 1703230070). “If S.J.Res. 34 were presented to the President, his advisors would recommend that he sign the bill into law,” the Trump administration said, citing “strong” support.

The House passed the CRA Tuesday in a tight party-line vote of 215-205. More than a dozen Republicans voted against the CRA resolution, unlike the unified GOP backing in last week's Senate vote. The chamber passed the initial measure to advance the CRA 231-189 along nearly entirely partisan lines earlier in the day.

Sen. Ed Markey, D-Mass., immediately pledged legislation​: “In light of this Republican roll-back, I plan to introduce legislation that directs the FCC to reinstate strong broadband privacy rules," he said in a statement after the House vote.

“Appropriately, Congress has passed a resolution to reject this approach of picking winners and losers before it takes effect," FCC Chairman Ajit Pai said in a statement. "Moving forward, I want the American people to know that the FCC will work with the FTC to ensure that consumers’ online privacy is protected though a consistent and comprehensive framework. In my view, the best way to achieve that result would be to return jurisdiction over broadband providers’ privacy practices to the FTC, with its decades of experience and expertise in this area."

Rep. Bob Latta, R-Ohio, is introducing legislation to address the 9th U.S. Circuit Court of Appeals' ruling on FTC authority over ISPs, he said on the floor Tuesday. He hopes colleagues "will join us," Latta said: "This bill makes clear that the [FTC] has authority over common carriers when they are acting outside the scope of the common carrier." The ruling "creates a gap" that "would leave portions of the internet ecosystem" outside FTC jurisdiction, he said. The bill upholds the common-carrier exemption overall, he said. Latta's partner on the bill is Rep. Pete Olson, R-Texas, he said. The FCC would retain authority over broadband privacy after enactment of the CRA but would lose such authority if it were to classify broadband as a Communications Act Title I service. It's now a Title II telecom service, and the FTC is exempt from regulating common carriers.

House Communications Subcommittee ranking member Mike Doyle, D-Pa., offered passionate opposition to the CRA on the floor Tuesday. He opposed it during the Rules Committee consideration Monday (see 1703270064). “No company will even put its name behind this effort,” Doyle said, calling the CRA the result of an “explicit written request from Washington lobbyists.” He challenged Republicans to ask consumers at their town halls whether they think it’s a good idea to allow ISPs to use their private information: “This resolution is of the swamp.”

Other Democrats loudly pushed back this week. “Republicans turn their backs on the 75 percent of Americans who want more control over their internet privacy,” House Minority Leader Nancy Pelosi, D-Calif., said in a statement Tuesday: ISPs "must now stand up and be counted -- whether they will stand with consumers in opposing the Republican bill, or announce their eagerness to sell the private information of the American people.” She sent letters to 11 ISPs asking whether they would oppose the CRA.

House Commerce Committee ranking member Frank Pallone, D-N.J., joined Senate Democrats in a live-streamed Facebook protest Monday. He and Markey agreed the GOP strategy was to advance this CRA under the cover of the GOP healthcare legislative effort, which faltered at the end of last week. “No one will be able to protect you, not even" the FTC "that our friends on the other side of the aisle keep talking about,” said Rep. Anna Eshoo, D-Calif., on the floor Tuesday. The rules weren't burdensome, Pallone said. "This resolution is a gift to countries like Russia, who want to take our citizens' personal information.”

“We’re recalling the FCC’s privacy rules that they did at the end of the Obama administration and sending the authority to regulate privacy back to the FTC where it belongs,” House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., told NTCA Tuesday, to applause. The CRA resolution wouldn't restore authority to the FTC, a point Doyle and Democrats frequently made. Blackburn also spoke on the floor and pointed to Section 222. House Commerce Committee Chairman Greg Walden, R-Ore., spoke on the floor, calling the CRA “good work” and saying “harms are certain” from the rules if they remain. Rep. Bill Flores, R-Texas slammed the “top-down” FCC rules with several “problematic” issues. Latta referred to the Obama administration holding up the FTC framework during U.S.-EU Privacy Shield negotiations.

ISP industry officials defended the Congressional Review Act resolution of disapproval method to kill the FCC rules, speaking Tuesday during a news-media call. Association lobbyists said their ISP members would honor consumer privacy even without the FCC rules and stressed a desire for uniformity among privacy rules.

“It’s always easier for one side to create a parade of horribles,” said NCTA Executive Vice President James Assey, citing “a very frustrating debate sometimes.” 21st Century Privacy Coalition General Counsel Howard Waltzman said much of the fear about loss of consumer privacy has “been ginned up” and there’s little fear of ISPs using consumers’ information in ways that public interest groups and Hill Democrats describe. He said the CRA would simply retain the status quo, in which consumers are protected by FCC enforcement under Communications Act Section 222. The congressional action is the “right direction,” said USTelecom Vice President Lynn Follansbee, calling consumer privacy “a core value” for her association’s members. CTIA Associate General Counsel Maria Kirby and CTA Vice President Julie Kearney agreed. The representatives held the call to try to “cut through the overheated rhetoric and the fake news,” said 21st Century Privacy Coalition co-Chairman Jon Leibowitz.

The CRA’s enactment would prevent the FCC from developing substantially similar rules. Waltzman said the FCC has leeway to develop different ones and said he doesn't see a litigation risk for the agency, despite what he acknowledged was little precedent in the CRA’s use.

The FCC order “departs from the technology-neutral framework for online privacy administered" by the FTC, the Trump administration said. “This results in rules that apply very different regulatory regimes based on the identity of the online actors.”