October 2016

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.

Two petitions have been filed seeking a waiver of section 64.1200(a)(4)(iv) of the Commission’s rules, which requires that an opt-out notice containing certain information be included in fax ads sent to a consumer who has provided prior express invitation or permission. With this Public Notice, we seek comment on the Petitions as described below. Specifically, Petitioners seek retroactive waiver of the opt-out notice requirement for fax ads they sent where prior express invitation or permission allegedly had been obtained from the recipients. The Petitioners argue that good cause exists because they are similarly situated to parties who were granted retroactive waivers from this requirement by the Commission in the Anda Order. In the Anda Order, the Commission granted retroactive waivers to several individual petitioners because of uncertainty about whether the opt-out notice requirement applied to “solicited” faxes.

Before Democrat Hillary Clinton “overturns Citizens United,” curtails “secret, unaccountable money in politics” and ends “the stranglehold that the wealthy and special interests have on so much of our government,” she has some business left to do. Namely, obliterating Republican Donald Trump with her historically massive, big-dollar, lobbyist-loaded campaign cash machine — one she says she’ll gladly disassemble once she wins the White House, but not before. And new campaign finance reports show Clinton is sticking to that plan as Election 2016 enters its final days.

In the last campaign finance filing before the election Clinton and her super PAC allies have reported raising $702 million through Oct. 19, compared to Trump and his supportive groups, who have raised $312 million. It is a startling rebuke to the no-longer-so-true truism that Republicans are the primary beneficiary of big political money. Clinton’s advantage will likely to hold to the end, as she and her super PAC allies reported $79 million in the bank as of Oct. 19, according to a Center for Public Integrity analysis of new campaign finance reports. Compare that to Trump and his super PAC supporters, who have about $32 million in reserve. Clinton’s campaign committee alone has raised more than twice as much money as Trump’s: $513 million versus $255 million. Her $62.4 million cash on hand as of Oct. 19 is nearly four times Trump’s $16 million.