Committee Leaders Press FCC on Approach to Privacy Under Recent Proposed Rulemaking

The following press release was published by the House Committee on Energy and Commerce on June 1, 2016. It is reproduced in full below.

WASHINGTON, DC - House Energy and Commerce Committee Chairman Fred Upton (R-MI), Commerce, Manufacturing, and Trade Subcommittee Chairman Michael C. Burgess, M.D. (R-TX), and Communications and Technology Subcommittee Chairman Greg Walden (R-OR), today sent a letter to Federal Communications Commission (FCC) Commissioner Tom Wheeler regarding the FCC’s April 1, 2016, Notice of Proposed Rulemaking (NPRM).

In the recent NPRM, the FCC proposed privacy and data breach notification requirements on broadband Internet service providers (ISPs). The proposed NPRM could have detrimental effects on consumers’ expectations when the online services they use on a daily basis are subject to different sets of rules. The members write, “Ultimately, the FCC’s proposal for new ISP-specific privacy rules seems to miss the point: rather than serve the public interest, these new rules will create public confusion." They continued, “Consumers will bear the impact of delayed innovation, consumers will suffer from deferred deployment, and consumers will suffer from inefficient design as companies seek to avoid a more burdensome and costly privacy regime."

When the FCC reclassified broadband ISPs as common carriers under Title II of the Communications Act of 1934, they created a two-tiered system and removed broadband Internet access service providers from the Federal Trade Commission’s jurisdiction. The FTC, by all accounts, has been the primary arbiter of consumers’ rights and expectations with regard to Internet privacy by balancing consumer protection and innovation. Importantly, the FTC regulated all members of the Internet ecosystem under a consistent set of rules.

The members conclude, “We recognize that even in a world where the FCC erroneously considers the Internet to be common carriage, consumers deserve to be protected. However, rather than a prescriptive rulemaking, we believe that the FCC should create a more consistent privacy experience for consumers by mirroring the FTC’s successful enforcement-based regime. … Knowing that an enforcement-based approach at the FCC, modeled on the FTC’s success, can work to protect consumers without injecting new complexity and uncertainty into the Internet economy, we urge you to reconsider your approach."