March 2017

On March 28, the US House of Representatives voted to revoke rules created by the Federal Communications Commission that would have required broadband providers to receive permission before collecting data on subscribers’ online activities. In a 215-to-205 vote largely along party lines and which mirrored an earlier vote in the Senate, Republican Representatives delivered a massive victory for broadband providers while offering flimsy justification. The move is sparking a backlash from consumers who value their online privacy. But while the plan to remove privacy protections may harm consumers, some GOP leaders have something else in their sights: the repeal of network neutrality.

[Commentary] The common currency in the internet age for both “edge” providers such as Google and the operators of “core” broadband networks such as Verizon and CenturyLink is information to provide consumers with enhanced online experiences. Given Americans’ voracious use of the internet, and what our browsing and buying habits say about us, common sense would dictate that the U.S. Government’s approach to the complex issue of consumer privacy should be comprehensive and not piecemeal: for industry-wide problems we need industry-wide solutions, not unique rules for one kind of company and different rules for another.

The FCC under former Chairman Tom Wheeler didn’t care less about cohesive policy approaches. Rather than attempting to harmonize its privacy policy with the approach taken by the Federal Trade Commission that already oversees online privacy issues, the FCC decided to re-invent the wheel and write its own set of draconian rules creating gaps and inconsistencies with the FTC’s approach. The FCC’s privacy rules were just bad rules. They were an excellent example of politically-driven asymmetrical regulation specifically designed to transfer economic profits from the core of the network to the edge. In plain English, the FCC’s rules were designed to help edge companies like Google protect their market share against competition from broadband service providers like AT&T. In so doing, the FCC perversely provided further incentive for broadband providers to reduce network investment. The Congressional Review Act does not change the state of the governing law. This is because the CRA is not designed to re-write an administrative agency’s governing statute, but to provide Congress with a direct oversight mechanism to review and disapprove how an administrative agency implements its governing statute. According to the CRA, if Congress disapproves of a specific rule, then an administrative agency may not reissue that rule “in substantially the same form….”