March 2017

[Commentary] The Federal Communications Commission and Congress are taking steps to weaken and eliminate the FCC’s privacy rules for broadband Internet service providers (ISPs) like Comcast and AT&T. The proponents of these efforts make two arguments - neither of which will leave consumers with the privacy protections they now have and deserve.

The first is that there should be one set of privacy rules for ISPs and so-called “edge” companies like Google and Facebook, and that these privacy practices should be overseen solely by the Federal Trade Commission (FTC), which currently has no legal authority over ISPs. I agree that one set of rules for the Internet ecosystem might be desirable, but why shouldn’t they meet the higher FCC standard that affords consumers more protection? And while the FTC is an important partner to the FCC on a variety of consumer protection and competition matters, including privacy, it lacks the ability to adopt rules - a critically important tool when it comes to protecting consumers.

The second argument is that even without the broadband privacy rules, the FCC can still protect consumer privacy under Section 222 of the Communications Act, which requires telecommunications carriers to protect the privacy of their customers’ information. But there is a more fundamental problem. If, as FCC Chairman Ajit Pai believes, that the FTC, and not the FCC, should have the legal authority to regulate the privacy practices of ISPs, why would his agency enforce Section 222 at all? Indeed, his colleague Commissioner Mike O’Rielly made clear in his dissent to the October privacy decision that he does not believe the FCC has that authority today.

Nobody should fall for this privacy shell game. The FCC’s broadband privacy rules are currently the best protection consumers have for their personal information online.

[Gigi Sohn is an Open Society Foundations Leadership in Government Fellow.]

Telecommunication industry insiders waiting for President Donald Trump to name a third GOP member of the Federal Communications Commission are focused on two possible contenders. Industry officials and telecom attorneys are pointing to Duke University economics professor Michelle Connolly and American Enterprise Institute scholar Roslyn Layton as likely candidates for the post.

The pair may have an edge over other possible picks because conservatives are interested in candidates with a strong grounding in economics. The Obama Administration’s FCC endured GOP criticism for allegedly not folding sufficient economic analysis into new rules and regulations. Sitting GOP Commissioner Michael O’Rielly called for the creation of an all-new FCC economics bureau in March 8 testimony for a Senate oversight hearing. Connolly, the FCC’s chief economist under former Republican Chairman Kevin Martin, holds a raft of Yale University economics degrees. Layton’s work with AEI and as a fellow in the Center for Communication, Media and Information Technologies at Denmark’s Aalborg University has touched frequently on the economics of technology and the internet. She advised the Trump team on the FCC during the transition.