Lauren Frayer

The Tom Wheeler Federal Communications Commission suffered another defeat in the opt-out advertising category March 31 as a three-judge panel of the US Court of Appeals—in a 2-1 decision—overturned a ruling regarding faxed advertisements, saying the FCC had exceeded its authority. The FCC in 2014 upheld a previous conclusion that its rule implementing The Junk Fax Prevention Act of 2005 required opt-out notices not only on unsolicited faxed ads but solicited ones as well. That was more than an academic exercise since the FCC was responding to a 2010 request for a declaratory ruling by a drug company, Anda, that wanted the FCC to find the rule didn't apply to solicited faxes—since that meant the recipient had agreed to get them. Anda was being sued for $150 million by pharmacies that claimed, even though they had agreed to get the faxes, there should have still been an opt-out option. The FCC agreed; the court panel did not.

The DC Circuit reversed the Commission’s Anda Order, which had been adopted in relevant part on a 3-2 party-line vote. FCC Chairman Pai issued the following statement: “Today’s decision by the DC Circuit highlights the importance of the FCC adhering to the rule of law. I dissented from the FCC decision that the court has now overturned because, as I stated at the time, the agency’s approach to interpreting the law reflected ‘convoluted gymnastics.’ The court has now agreed that the FCC acted unlawfully. Going forward, the Commission will strive to follow the law and exercise only the authority that has been granted to us by Congress.”

President Donald Trump has yet to fill many key science and technology positions at the White House, and it's not clear when he will. Under President Barack Obama, the White House chief technology officer's staff included about 24 people. As of the week of March 27, President Trump has named only one person to that office—Michael Kratios, formerly chief of staff to Trump's tech adviser and tech investor Peter Thiel.

The CTO's office is housed within the White House's Office of Science and Technology Policy, which also doesn't have a director yet. “The impression this leaves is that Trump isn’t interested in science and that scientific matters are a low priority at the White House,” said Vint Cerf, the Google technologist known as the "father of the internet". President Trump's budget blueprint, released earlier this month, proposed slashing federal research funding at agencies including the National Oceanic and Atmospheric Administration and, at the Energy Department, eliminating a research and development unit altogether. Some of President Trump's advisers have recommended eliminating OSTP, which the administration is free to do. White House structure isn't set in law, said Martha Joynt Kumar, director of the White House Transition Project.

Congress shot down the Federal Communications Commission’s internet privacy rules this week, and in doing so, created a world of confusion over what Americans should expect when it comes to online privacy. With the protections gone, no one’s quite sure what to expect — some suspect their browsing habits are going up for sale, while others see no changes coming whatsoever. That uncertainty and confusion is justified: the rules Congress shot down were meant to clarify an existing set of already vague and confusing policies. On some level, it’s being left up to internet service providers, or ISPs, to decide what the rules do and don’t allow them to do. And while none of them are very clear about their intentions, there’s plenty we can suss out based on what we already know. So to cut through the haze, we pulled together everything you need to know about the current state of online privacy rules.

[Commentary] Fallout from a vote to roll back the Federal Communications Commission's broadband privacy rules continues to ripple through the US. Gigi Sohn, a former FCC staffer and advisor to previous FCC Chairman Tom Wheeler, said, "I think the fervor over this is not going to die down anytime soon," adding, "I think it's going to become an election issue. This is something everybody can understand." The roll back could have broader surveillance fallout as well. At least, that's what law professor Paul Ohm contends in an op-ed for The Washington Post. Not splitting hairs whatsoever, Ohm writes, "Once Trump signs the bill, diminishing the FCC's power to police privacy online, ISPs will feel empowered — perhaps even encouraged – by Republicans (no Democrats voted for this measure) to spy on all of us as they never have before. And spy they will." It's too early to tell whether this week's rollback will ultimately cost Republicans political capital, but for now, the headlines are still humming — right or wrong.

Apparently, Verizon has been securing streaming rights from television network owners in preparation for the nationwide launch of a live online TV service. The telecommunications company plans to start selling a package with dozens of channels this summer. The live, over-the-internet TV service would be a first for Verizon -- separate from go90, a YouTube-like streaming-video service aimed at teens -- and also independent of its FiOS home TV offer, apparently. Verizon’s preparations highlight the growing pressure to provide a cheaper, smaller package of TV networks to viewers who are turned off by a glut of programming available on traditional cable packages. Dish Network Corp. introduced a similar service, Sling TV, two years ago, and AT&T’s DirecTV Now came out late in 2016.

Federal Communications Commission Chairman Ajit Pai's proposal to deregulate business data service (BDS) rates—credit card readers, ATMs—of incumbent carriers and not to impose potential new price regulations on competitors including cable operators was drawing a lot of attention in Washington after the chairman signaled the FCC would vote on his BDS item at the April meeting. Former chairman Tom Wheeler ran out of time and support for his BDS revamp, which Pai had issues with. A notice of proposed rulemaking (NPRM) under Wheeler was adopted along party lines, but the order was never voted. Pai’s item would be an order based on what he said was lengthy data collection and the input into that NPRM, though critics of his plan were suggesting it was sufficiently different from the NPRM that it should be put out for new comment.

Legislation approved by the Minnesota House and Senate the week of March 27 would prevent Internet service providers from collecting personal information without written approval from customers. The quick action came in response to the US House and Senate voting to eliminate nationwide rules that would have forced ISPs to get consent from Americans before using or selling Web browsing history and app usage history for advertising purposes.

President Donald Trump is expected to sign off on Congress' decision to kill the Federal Communications Commission privacy rules. While there wouldn't be any rules for ISPs at the national level, states could try to implement some form of the FCC rules for their own residents. ISPs might conceivably change their practices nationwide if enough states do so, or customers in some states could have fewer privacy protections than customers in other states. As on climate change, immigration and a host of other issues, some state legislatures may prove to be a counterweight to Washington by enacting new regulations to increase consumers’ privacy rights.

Two companies, Comcast and AT&T, each tried on March 31 to mount a defense of their intense lobbying campaign to undo the Federal Communications Commission’s rules, which would have required the industry to seek customers’ permission before collecting consumers’ web browsing history and selling that to third parties, like advertisers. President Donald Trump is expected to sign the reversal into law in the coming days. In a blog post, Gerard Lewis, the chief privacy officer for Comcast, stressed: “We do not sell our broadband customers’ individual web browsing history. We did not do it before the FCC’s rules were adopted, and we have no plans to do so.”

[C]ompanies that collect and use the most customer information on the internet are not the Internet service providers but other internet companies, including operating system providers, web browsers, search engines, and social media platforms. And the Federal Communications Commission rules had nothing – literally nothing – to do with these companies or their practices. Indeed, in fashioning the rules, the Tom Wheeler FCC gave consumers a false sense of security by limiting how ISPs – and ISPs alone – use internet data while knowing that other competitors in the internet ecosystem had access and freedom to use the same data across whatever platform the consumer used to access the internet.

AT&T’s approach, which is to focus on the nature of the data and have a consistent framework on collection, use and sharing, was actually the Obama Administration policy for nearly eight years until the Wheeler FCC did a sudden about-face. Hopefully, this week’s action by Congress gets us back on the path to a more rational and consumer-friendly framework. I am also hopeful that facts actually work their way back into the debate.