April 2012

Federal Trade Commission Chairman Jon Leibowitz and Maureen K. Ohlhausen were confirmed by the U.S. Senate on March 29 to serve as Commissioners of the FTC.

Leibowitz was first appointed to the Commission in 2004 and was designated by President Barack Obama to serve as Chairman in 2009. As Chairman, he has worked to stop scams that prey upon consumers suffering from the economic downturn, protect consumers' privacy – especially on the Internet, preserve competition in healthcare and restrict anticompetitive "pay-for-delay" patent settlements in the pharmaceutical industry, and promote competition and innovation in the technology sector through law enforcement and policy initiatives. Leibowitz is a graduate of the University of Wisconsin and the New York University School of Law.

Ohlhausen has been a partner at Wilkinson Barker Knauer, LLP since 2009, focused on privacy, data protection, and cybersecurity. She previously served for 11 years at the FTC, most recently as Director of the Office of Policy Planning from 2004 to 2008, leading the FTC's Internet Access Task Force, and formerly was an attorney advisor for former Commissioner Orson Swindle. Earlier in her career, Ohlhausen worked at the U.S. Court of Appeals for the D.C. Circuit as a law clerk for Judge David Sentelle, and clerked for Judge Robert Yock of the U.S. Court of Federal Claims. She is a senior editor of the American Bar Association Antitrust Law Journal and has taught privacy law and unfair trade practices as an adjunct professor at George Mason University School of Law. Ms. Ohlhausen is a graduate of the University of Virginia and George Mason University School of Law.

[Commentary] There is a battle brewing between the Federal Trade Commission and digital advertisers over a system designed to help people control their data called "Do Not Track."

• The FTC seems to define it like this: “An effective Do Not Track system should go beyond simply opting consumers out of receiving targeted advertisements; it should opt them out of collection of behavioral data for all purposes other than those that would be consistent with the context of the interaction.”
• The advertising industry seems to define it as “forbidding the serving of targeted ads to individuals but not prohibiting the collection of data.”

The industry definition of 'Do Not Track' is based on the opt-out language they used in a previous self-regulatory effort. Unfortunately, no one understands the industry's definition because it deviates so far from the standard English definition of the word 'track.' Simply because the industry itself has defined 'Do Not Track' in an idiosyncratic way doesn't mean their self-serving decision should be the basis for all policy and practice in this field. In fact, if the industry is putting up this kind of consumer-unfriendly fight over what DNT should mean, how are we supposed to trust the other self-regulatory moves the industry says it will make to protect consumer privacy?

After years of licking its wounds, and with much of the fiber-optic cable capacity in the ground still unused, the telecom industry is going on another building spree. Some 19 million miles of optical fiber were installed in the U.S. last year, the most since the boom year of 2000, research firm CRU Group says.

Corning, a leading maker of fiber, sold record volumes last year and is telling new customers that it can't guarantee their orders will be filled. RWF Bron, a Canadian maker of the specialized "cable plows" used to bury fiber-optic cable, says the last six months were its busiest in a decade. And railway Norfolk Southern says it is finally seeing interest in the empty plastic pipes it buried along its tracks in the late 1990s, betting telecom companies would pay to string fiber through them. It is early days in what some in the fiber-optic business are calling a new boom for their long-beaten-down industry. Demand is being driven by skyrocketing Internet video traffic, requests from the financial sector for ever-faster trading connections, and soaring mobile phone use -- which has to be tied into landline networks. Even the 2009 economic stimulus plan, which set aside $7.2 billion for telecom projects, is pitching in. But already some skeptics caution whether enough demand exists to warrant more building.

State utility commissioners want action by the Federal Communications Commission (FCC) to ensure all Voice over IP (VoIP) phone providers follow the same set of rules for managing phone numbers.

The National Association of Regulatory Utility Commissioners (NARUC) filed a formal request with the FCC for a rulemaking to stop "a number" of VoIP carriers who "continue to seek favored treatment via direct access to [phone] numbers and without the related obligations." NARUC argues that there is no mechanism for monitoring number utilization by unlicensed and non-certified carriers, which are "not likely to have an incentive to efficiently utilize numbering resources." Many "small nomadic" VoIP providers haven't obtained licenses from either states or the FCC, but instead directly petitioned the FCC for a waiver, NARUC said in its request. NARUC's request for rulemaking is a result of those petitions, it said.