Wendy Davis

The Federal Trade Commission is drawing support in its battle with AT&T from other policymakers, including Sen Richard Blumenthal (D-CT) and the Federal Communications Commission, as well as privacy experts and advocacy groups. Sen Blumenthal, the FCC and others are asking the 9th Circuit Court of Appeals to reconsider a recent decision dismissing an enforcement action against AT&T. The FTC alleged in an October 2014 complaint that AT&T duped more than 3.5 million people by selling them unlimited data plans, but slowing their connections after they exceeded monthly allotments ranging from 3 GB to 5 GB. AT&T countered that the FTC lacks authority to bring an enforcement action against common carriers. A three-judge panel of the 9th Circuit recently sided with AT&T, ruling that the FTC can't sue common carriers -- even when the lawsuit centers on a non-common carrier service. (Mobile broadband wasn't considered a common carrier service when the FTC brought the case.)

Earlier in Oct, the FTC sought a new hearing in front of at least 11 of the 9th Circuit's judges. Sen Blumenthal argues in a proposed friend-of-the-court brief that the panel's ruling creates "a wide hole in FTC jurisdiction that undermines the agency’s ability to remedy deceptive acts committed by the growing range of companies that engage in common-carrier activity as well as non-common-carrier activity."

Broadband providers have spent months complaining that proposed new privacy rules would unfairly subject them to more stringent privacy rules than Google, Facebook or other online companies. Today, privacy guru and law professor Paul Ohm -- an outspoken proponent of tough privacy rules -- answers that objection. Internet service providers, Ohm says, should have to follow tough standards because ISPs pose a greater threat to privacy than other companies. "Your ISP is the mandatory first hop to the rest of the Internet, and everything you do while connected to a particular ISP flows first through its servers," he writes in a post at Benton Foundation. "Your ISP can develop a nearly-comprehensive picture of what you do that other companies would pay a king’s ransom to be able to access."

Broadband providers AT&T, Comcast and T-Mobile have officially asked the Federal Communications Commission to retreat from a privacy proposal that could limit online behavioral advertising.

The proposal would require Internet service providers to obtain consumers' explicit consent before drawing on their app usage or Web-browsing histories for ad targeting. That proposal applies only to companies that offer Internet access services like Verizon and Time Warner as opposed to online publishers, search engines and other so-called "edge" providers. Google, Facebook and other Web site operators currently let people opt out of receiving behaviorally targeted ads, but don't seek people's advance permission unless drawing on data the ad industry considers "sensitive." In general, that ad industry says the concept includes precise geolocation information, financial account numbers and health-care data. AT&T, Comcast and T-Mobile are now lobbying the FCC against the proposed rules. AT&T vice president Joan Marsh spoke with the agency and espoused the view that customers "do not expect different rules to apply to the various entities within the internet ecosystem." T-Mobile argued in a separate filing for "a level playing field among ISPs and edge providers." The company adds that it should not have to obtain consumers' opt-in consent before drawing on their "non-sensitive" Web browsing and app usage history. Comcast senior vice president Kathryn Zachem likewise told FCC last week that broadband providers should be able to draw on subscribers' "non-sensitive" Web-browsing and app usage history for ad targeting on an opt-out basis.

Netflix and Dish Network are joining with consumer groups to urge a federal appellate court to reject broadband providers' latest attempt to challenge the net neutrality rules. The rules, passed in 2015 by the Federal Communications Commission, reclassified broadband access as a utility service and imposed common-carrier obligations on broadband providers. The regulations prohibit Internet service providers from blocking or degrading traffic, and from engaging in paid prioritization. The FCC also broadly banned providers from hindering Web users and content companies from connecting with each other online -- although the scope of that prohibition remains uncertain. In June, a three-judge panel of the DC Circuit Court of Appeals upheld the rules. The panel specifically rejected Internet service providers' argument that the FCC lacked authority to classify broadband service as a utility.

The ISPs recently asked the appellate court for a new hearing in front of additional judges. This week, the FCC filed papers opposing that request. A coalition including Netflix, Dish and various advocacy groups like Free Press and Public Knowledge also opposes the request. They argue that the broadband providers haven't raised the kinds of legal issues that warrant a new hearing.

Federal Communications Commission Chairman Tom Wheeler said that he anticipates finalizing broadband privacy rules later in 2016. Testifying at a Senate hearing, Chairman Wheeler also hinted that the final regulations could differ from a proposal he put forward earlier this year. That initial proposal would require Internet service providers to obtain consumers' consent before drawing on their Web-surfing data for behavioral targeting. Ad networks, online publishers and other online advertising companies, by contrast, typically operate on an opt-out basis. While Chairman Wheeler didn't elaborate on how the rules may evolve, he said in his prepared testimony that the Federal Trade Commission's input "has been particularly helpful."

Staff at the FTC recommended earlier this year that Internet service providers should obtain opt-in consent before using "sensitive" data for ad targeting, and allow consumers to opt out of the use of "non-sensitive" information. Some broadband carriers have argued that they should be able to treat sensitive and non-sensitive data differently. Verizon, for instance, argued in an FCC filing that it should only be required to obtain opt-in consent for "the most sensitive use cases." But privacy advocates have argued against different rules for different types of data. "A rule that varies based on sensitivity will be a much more complex, unpredictable, and less privacy protective one," privacy expert and former FTC adviser Paul Ohm recently told the agency. What's more, he adds, figuring out whether information is sensitive "requires far more invasion of privacy as well as far more surveillance."

Netflix is calling for the government to crack down on broadband providers that impose data caps on their subscribers.

Data caps "discourage a consumer’s consumption of broadband, and may impede the ability of some households to watch Internet television in a manner and amount that they would like," Netflix says in a new filing with the Federal Communications Commission. Netflix is urging the FCC to rule that all data caps on wireline networks, as well as "low" data caps on mobile networks, may "unreasonably limit Internet television viewing." The company adds that data caps (as well as pay-per-byte billing) don't seem to have any purpose other than to make online video more expensive for consumers. Consumer advocates have made the same point, arguing that data caps don't help manage congestion on wireline networks, given that the caps aren't pegged to current network conditions.

An ad industry watchdog has referred Sprint to the Federal Communications Commission over ads stating that mobile customers can save 50 percent on their monthly rates by switching to Sprint.

The National Advertising Division, a unit administered by the Better Business Bureau, recommended in May that Sprint revise the ads, which appeared on TV, the radio, the Web, and in print. On Aug 19, the NAD said it had referred Sprint to the FCC because the company "has not agreed to implement all of NAD’s recommendations." A Sprint spokeswoman says the company believes its ads are "truthful, accurate and in the spirit of competition." The ads, which were challenged by T-Mobile, promised to slash people's bills by 50% when they switched to Sprint. T-Mobile argued that the boasts were problematic because its customers are on "hundreds" of plans, and only some customers would see their bills reduced by 50 percent by switching to Sprint.

Comcast is asking the Federal Communications Commission to reject proposed rules that would prohibit broadband providers from charging higher fees to subscribers who decline behaviorally targeted ads.

"A bargained-for exchange of information for service is a perfectly acceptable and widely used model throughout the U.S. economy, including the Internet ecosystem, and is consistent with decades of legal precedent and policy goals related to consumer protection and privacy," Comcast writes in a new FCC filing. The broadband provider adds that a prohibition on a pay-for-privacy pricing system "would harm consumers by, among other things, depriving them of lower-priced offerings." Comcast also contends the FCC "has no authority to prohibit or limit these types of programs."

Streaming video service Aereo is pushing forward with its argument that it should be allowed to resume operations on the grounds that it's now a “cable system” and entitled to transmit television programs as long as it pays licensing fees.

Aereo's latest round of court papers come in response to a motion by broadcasters for “summary affirmance” of US District Court Judge Dale Kimball's order enjoining Aereo from operating in six states: Utah, Colorado, Kansas, New Mexico, Wyoming and Oklahoma.