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New privacy rules that protect the Web browsing data of broadband subscribers went into effect just two weeks ago, but they could be overturned shortly after Republicans gain a majority at the Federal Communications Commission.
The FCC voted on the rules on October 27, and they partially took effect on January 3.
Also on January 3, trade groups representing ISPs filed petitions asking the FCC to reconsider the rulemaking, said an FCC public notice issued today.
Normally, these petitions for reconsideration would be rejected by the FCC, and ISPs’ next option would be to sue.
But in this case, the privacy rules were passed 3-2, with three Democrats voting for the rules and two Republicans voting against them.
Those two Republicans, Ajit Pai and Michael O’Rielly, will enjoy a 2-1 majority after President-elect Donald Trump’s inauguration Friday because Democratic Chairman Tom Wheeler said he will resign, and Democratic Commissioner Jessica Rosenworcel had to leave the FCC when the Republican-controlled Senate refused to reconfirm her for another term.
After Trump won the presidential election on November 8, Republicans in Congress asked the FCC to halt any controversial rulemakings until the inauguration and warned that any action taken in the final days of the administration could be more easily overturned.
But that’s also true of the privacy order, even though it was passed nearly two weeks before the election. Opponents of new rules are given 30 days to petition for reconsideration, but the clock doesn’t start until the rules are published in the Federal Register, which never happens instantaneously.
The privacy rules were published in the Federal Register the first week of December, which gave opponents until January 3 to file petitions.
The process for considering the petitions will extend past Wheeler’s resignation. Once today’s public notice is published in the Federal Register, supporters of the privacy rules will have 15 days to file oppositions to the petitions for reconsideration.
After that, there will be another 10 days allotted for replies to oppositions. Pai and O’Rielly will presumably then get the process for overturning the rules moving. We contacted Pai and O’Rielly today but haven’t heard back yet.
Even if the FCC does eliminate the privacy rules in response to the petition for reconsideration, that action could be appealed in court by supporters of the privacy rules.
Opt-in consent required—for now
The new privacy rules require fixed and mobile ISPs to get opt-in consent from consumers before sharing Web browsing data and other private information with advertisers and other third parties. (This customer approval provision isn’t scheduled to take effect until at least December 2017.) Most of the petitions to reconsider the rules were filed by ISP lobby groups, namely the United States Telecom Association, CTIA, the American Cable Association, the Competitive Carriers Association, ITTA-The Voice of Mid-Size Communications Companies, NCTA-The Internet & Television Association, and the Wireless Internet Service Providers Association.
There were also petitions from Oracle, the Association of National Advertisers, the Consumer Technology Association, and Level 3.
Wheeler argued when the rules were passed that ISPs are uniquely capable of collecting consumers’ Internet traffic because they can monitor everything that goes over the connection and because it is difficult for customers to switch ISPs. “What this item does is to say that the consumer has the right to make a decision about how her or his information is used,” Wheeler said.
O’Rielly argued at the time that the commission doesn’t have the “statutory authority to adopt broadband privacy rules” and that the rules would prevent ISPs from offering “innovative services” and competing against Internet companies in the online advertising market. Pai argued that ISPs shouldn’t face stricter rules than companies like Google and Twitter that are regulated separately by the Federal Trade Commission.
“Due to the FCC’s action today, those who have more insight into consumer behavior (edge providers) will be subject to more lenient regulation than those who have less insight (ISPs),” Pai said. “This doesn’t make sense… Nothing in these rules will stop edge providers from harvesting and monetizing your data, whether it’s the websites you visit or the YouTube videos you watch or the e-mails you send or the search terms you enter on any of your devices.”
Pai, who reportedly met with Trump yesterday, seems likely to be appointed the FCC’s interim chairman.
In a speech last month, Pai made it clear that he is intent on rolling back some of Wheeler’s major initiatives.
The net neutrality rules’ “days are numbered,” and “during the Trump Administration, we will shift from playing defense at the FCC to going on offense,” he said.
The FCC “need[s] to remove outdated and unnecessary regulations” and “fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation,” Pai also said.
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