Wendy Davis

In 2016, three judges on a federal appellate court issued a stunning ruling that blocked the Federal Trade Commission from prosecuting AT&T for allegedly duping customers. The judges said in their opinion that the FTC couldn't proceed against AT&T because the agency lacks jurisdiction against common carriers. The ruling stemmed from what appeared to have been a straightforward deception claim: The FTC argued that AT&T misled consumers by selling them unlimited data, but throttling their broadband connections after they used between 3 and 5 GB a month.

The most surprising thing about the appellate judges' ruling was that the alleged deception occurred between 2011 and 2014 -- before mobile broadband was considered a common carrier service. The FTC is now asking for a new hearing in front of at least 11 of the 9th Circuit's judges. That request is backed by lawmakers, public interest groups and a different federal agency -- the Federal Communications Commission. Late during the week of April 17, the FCC filed a new round of papers with the 9th Circuit, arguing that the three judges who issued the original opinion incorrectly interpreted the law.

House Communications Subcommittee Chairman Marsha Blackburn (R-TN) says she is readying a push to revoke the Federal Communications Commission's broadband privacy rules. Chairman Blackburn said she believes lawmakers can use the Congressional Review Act to rescind the new privacy rules. Those rules, passed by a 3-2 vote last October, require broadband carriers to obtain consumers' opt-in consent before drawing on their data for ad targeting. "I think using the CRA is fine," Chairman Blackburn said. "We are working with the Senate to make sure we can do that." She added that she could move forward with the initiative as early as the week of Feb 13.

Her comments come several weeks after more than a dozen conservative and libertarian groups asked lawmakers to revoke the rules under the Congressional Review Act -- a rarely used 1996 law that allows federal lawmakers to overturn recent agency decisions. Chairman Blackburn also downplayed concerns that revoking the FCC's rules would leave broadband providers without any oversight when it comes to privacy, due to their status as common carriers. The Federal Trade Commission, which typically enforces privacy standards, isn't authorized to prosecute common carriers. "I would think there would be a way to work through that so that you don't have a gap in oversight," Chairman Blackburn said. She didn't elaborate further.

It's "highly likely" that Federal Communications Commission Chairman Ajit Pai will grant the ad industry's request to revisit tough broadband privacy rules, the Association of National Advertisers predicted. "Chairman Pai is a very thoughtful leader who understands the critical role advertising plays as a financial foundation for the online and media marketplace," the ANA said in hailing Pai's appointment. "Commissioner Michael O’Rielly and Chairman Pai have stated forcefully that they intend to take, in Pai’s words, a 'weed-whacker' to much of the Commission’s recent regulatory actions. Therefore, as they both voted against the sweeping privacy rule, it is highly likely they will respond positively to the request ... for a full reconsideration of this recent proposal."

Frontier, which offers both DSL and fiber-optic service, advertised that consumers could stream video and "never worry" about their connections, according to the National Advertising Division (NAD), a self-regulatory unit administered by the Better Business Bureau. But not all of Frontier's DSL service plans offer connections at fast enough speeds to stream video through Netflix (which recommends speeds of at least 3 Mbps for standard-definition streams and 5 Mbps for high-definition), according to the NAD. "Frontier offers a 1.5 Mbps plan which does not deliver the minimum speeds recommended for streaming Netflix," the NAD writes in its decision. "Even Frontier’s 3 Mbps plans would not be able to stream movies in HD. Frontier’s 6 Mbps plans would be unable to stream movies on multiple devices at one time." The decision stems from a challenge to Frontier's ads by rival provider Charter. Frontier said it had discontinued the ad claims, but the NAD said its investigation revealed that some of the ads still contained language flagged by Charter.

Software corporation Oracle is asking the Federal Communications Commission to reconsider the sweeping broadband privacy rules passed earlier in 2016. Oracle, which spent years unsuccessfully attempting to prove that Google's Android code infringes copyright, says the FCC's recent order on privacy will give Google an unfair advantage against Internet service providers. "The Commission cannot allow the order to stand, when it hands a clear victory to Google by hamstringing ISPs while allowing Google to continue to engage in invasive data collection and aggregation techniques, bolstered by its tight control of the Android operating system," Oracle said in a petition asking the FCC to reconsider the ruling.

The Federal Trade Commission is drawing support in its battle with AT&T from other policymakers, including Sen Richard Blumenthal (D-CT) and the Federal Communications Commission, as well as privacy experts and advocacy groups. Sen Blumenthal, the FCC and others are asking the 9th Circuit Court of Appeals to reconsider a recent decision dismissing an enforcement action against AT&T. The FTC alleged in an October 2014 complaint that AT&T duped more than 3.5 million people by selling them unlimited data plans, but slowing their connections after they exceeded monthly allotments ranging from 3 GB to 5 GB. AT&T countered that the FTC lacks authority to bring an enforcement action against common carriers. A three-judge panel of the 9th Circuit recently sided with AT&T, ruling that the FTC can't sue common carriers -- even when the lawsuit centers on a non-common carrier service. (Mobile broadband wasn't considered a common carrier service when the FTC brought the case.)

Earlier in Oct, the FTC sought a new hearing in front of at least 11 of the 9th Circuit's judges. Sen Blumenthal argues in a proposed friend-of-the-court brief that the panel's ruling creates "a wide hole in FTC jurisdiction that undermines the agency’s ability to remedy deceptive acts committed by the growing range of companies that engage in common-carrier activity as well as non-common-carrier activity."

Broadband providers have spent months complaining that proposed new privacy rules would unfairly subject them to more stringent privacy rules than Google, Facebook or other online companies. Today, privacy guru and law professor Paul Ohm -- an outspoken proponent of tough privacy rules -- answers that objection. Internet service providers, Ohm says, should have to follow tough standards because ISPs pose a greater threat to privacy than other companies. "Your ISP is the mandatory first hop to the rest of the Internet, and everything you do while connected to a particular ISP flows first through its servers," he writes in a post at Benton Foundation. "Your ISP can develop a nearly-comprehensive picture of what you do that other companies would pay a king’s ransom to be able to access."

Broadband providers AT&T, Comcast and T-Mobile have officially asked the Federal Communications Commission to retreat from a privacy proposal that could limit online behavioral advertising.

The proposal would require Internet service providers to obtain consumers' explicit consent before drawing on their app usage or Web-browsing histories for ad targeting. That proposal applies only to companies that offer Internet access services like Verizon and Time Warner as opposed to online publishers, search engines and other so-called "edge" providers. Google, Facebook and other Web site operators currently let people opt out of receiving behaviorally targeted ads, but don't seek people's advance permission unless drawing on data the ad industry considers "sensitive." In general, that ad industry says the concept includes precise geolocation information, financial account numbers and health-care data. AT&T, Comcast and T-Mobile are now lobbying the FCC against the proposed rules. AT&T vice president Joan Marsh spoke with the agency and espoused the view that customers "do not expect different rules to apply to the various entities within the internet ecosystem." T-Mobile argued in a separate filing for "a level playing field among ISPs and edge providers." The company adds that it should not have to obtain consumers' opt-in consent before drawing on their "non-sensitive" Web browsing and app usage history. Comcast senior vice president Kathryn Zachem likewise told FCC last week that broadband providers should be able to draw on subscribers' "non-sensitive" Web-browsing and app usage history for ad targeting on an opt-out basis.

Netflix and Dish Network are joining with consumer groups to urge a federal appellate court to reject broadband providers' latest attempt to challenge the net neutrality rules. The rules, passed in 2015 by the Federal Communications Commission, reclassified broadband access as a utility service and imposed common-carrier obligations on broadband providers. The regulations prohibit Internet service providers from blocking or degrading traffic, and from engaging in paid prioritization. The FCC also broadly banned providers from hindering Web users and content companies from connecting with each other online -- although the scope of that prohibition remains uncertain. In June, a three-judge panel of the DC Circuit Court of Appeals upheld the rules. The panel specifically rejected Internet service providers' argument that the FCC lacked authority to classify broadband service as a utility.

The ISPs recently asked the appellate court for a new hearing in front of additional judges. This week, the FCC filed papers opposing that request. A coalition including Netflix, Dish and various advocacy groups like Free Press and Public Knowledge also opposes the request. They argue that the broadband providers haven't raised the kinds of legal issues that warrant a new hearing.

Federal Communications Commission Chairman Tom Wheeler said that he anticipates finalizing broadband privacy rules later in 2016. Testifying at a Senate hearing, Chairman Wheeler also hinted that the final regulations could differ from a proposal he put forward earlier this year. That initial proposal would require Internet service providers to obtain consumers' consent before drawing on their Web-surfing data for behavioral targeting. Ad networks, online publishers and other online advertising companies, by contrast, typically operate on an opt-out basis. While Chairman Wheeler didn't elaborate on how the rules may evolve, he said in his prepared testimony that the Federal Trade Commission's input "has been particularly helpful."

Staff at the FTC recommended earlier this year that Internet service providers should obtain opt-in consent before using "sensitive" data for ad targeting, and allow consumers to opt out of the use of "non-sensitive" information. Some broadband carriers have argued that they should be able to treat sensitive and non-sensitive data differently. Verizon, for instance, argued in an FCC filing that it should only be required to obtain opt-in consent for "the most sensitive use cases." But privacy advocates have argued against different rules for different types of data. "A rule that varies based on sensitivity will be a much more complex, unpredictable, and less privacy protective one," privacy expert and former FTC adviser Paul Ohm recently told the agency. What's more, he adds, figuring out whether information is sensitive "requires far more invasion of privacy as well as far more surveillance."