FCC/FTC Privacy Dynamic Remains Pressure Point for Lawmakers

Pending Senate legislation from Sen. Richard Blumenthal, D-Conn., known as the Managing Your Data Against Telecom Abuses Act (see 1704170048), would remove the FTC’s common carrier exemption for broadband providers and give the FTC Administrative Procedure Act rulemaking authority for unfair or deceptive acts or practices on privacy and security, a Democratic Senate staffer told us. The bill text was unavailable. The legislation won't be formally introduced until Congress returns from recess next week, the staffer said.

The Senate aide distinguished the bill from that of House Digital Commerce and Consumer Protection Subcommittee Chairman Bob Latta, R-Ohio, who has legislation also aimed at ensuring the FTC would be able to act on ISP privacy focused on a recent court ruling.

Questions about the recent GOP-led repeal of the FCC’s ISP privacy rules are hounding lawmakers during the current two-week recess, with some Hill Republicans pressed during town hall meetings. “You got more contributions from the telecommunications industry, therefore you sold us out when you cancelled the FCC regulation that ensured my privacy,” an angry constituent told Sen. Tom Cotton, R-Ark., at a town hall session Monday, threatening a “repeal and replace” of Cotton in the 2020 election: “You could have written a law ensuring my internet privacy.” Cotton said lawmakers “want to protect your essential private information” but said the FCC rules hadn't taken effect and “did not create a level playing field” between ISPs and tech companies. “What should happen in this space like any other space is you have a fair and level playing field,” Cotton said, prompting some boos and lamentations.

The FTC “still has jurisdiction over these matters and still will regulate,” Cotton added. The trade commission, however, is limited in jurisdiction due to the current reclassification of broadband as a Communications Act Title II service, a common carrier, which the FTC is exempt from addressing. Republicans including FCC Chairman Ajit Pai say they want to return ISP privacy to FTC jurisdiction.

“What we want is a Federal Trade Commission rule that regulates that privacy for both ISPs and Google and Facebook and all the other people who collect our information,” said Rep. French Hill, R-Ark., at the same town hall gathering, suggesting he and “a majority in the Congress” would back the FTC “writing a rule that protects our privacy including ISPs and other entities such as Google, Facebook, etc.” Hill was among the nine House members who didn’t vote on the measure during its narrow March 28 House passage. A Hill spokesman didn’t comment on the FTC’s current inability to write rules, a key point about FTC limitations that congressional Democrats kept making before the votes.

Sen. Ed Markey, D-Mass., and Rep. Jacky Rosen, D-Nev., are leading legislation to undo the repeal of the FCC rules. Rosen’s four co-sponsors to her Restoring American Privacy Act (HR-1868) include House Commerce Committee ranking member Frank Pallone, D-N.J., and Communications Subcommittee ranking member Mike Doyle, D-Pa. ISP industry officials sought to reassure consumers of their privacy protections in recent weeks. “Contrary to some assertions, Congress did not vote down consumer privacy protections,” USTelecom President Jonathan Spalter wrote in a letter to the editor of Washington state’s Yakima Herald-Republic, published Tuesday, challenging the narrative of recent coverage. “It just cleared the way for the FCC and FTC to work together on a more comprehensive, consistent and clear approach that will protect all consumers online equally.”