FCC Backs FTC's Challenge to Ninth Circuit Ruling

Federal Communications Commission lawyers agree a recent court decision could threaten the privacy partnership between the FCC and Federal Trade Commission necessitated by the reclassification of Internet service providers as Title II common carriers. The FCC filed an amicus brief with the US Court of Appeals for the Ninth Circuit supporting the FTC’s challenge of a ruling by a three-judge panel of that court that calls into question the FTC's ability to protect the privacy of web user's data or determine how it can be shared by edge providers—Google, Facebook. The FCC said the FTC had made a "compelling case" for an en banc (full court) rehearing.

Courts do not frequently grant such requests but could win this case given the regulatory gap the decision appears to create. The filing, which was made before the FCC’s Oct 27 vote on its new rules, pointed out that vote was coming and that rules did not apply to edge privacy, including websites owned by broadband providers. "By restricting the FTC’s authority over non-common-carrier offerings of entities that also provide common carrier services, the panel’s decision creates uncertainty regarding the agencies’ collaborative efforts to protect the public interest, and potentially undermines those efforts," the FCC said. That is because the FCC and FTC have to take a sort of Jack Spratt approach given the bifurcated authority over ISPs and edge providers. For instance, the FCC regulates Google Fiber sub data privacy, while the FTC regulates Google search engine surfer data privacy, with different regimes and levels of protection for each.