• by Wendy Davis , Staff Writer @wendyndavis, May 10, 2016

The Association of National Advertisers suggested today that it will oppose regulations that would require broadband providers to obtain consumers' opt-in consent before drawing on their Web-surfing history for ad purposes.

"ANA will urge the FCC not to impose obligations inconsistent with the FTC’s approach, lest advertisers become subject to inconsistent or duplicative regulation," the organization says today in a new blog post.

The ANA adds that the government's privacy efforts should be "coordinated and not inconsistent and overly restrictive."

"Most importantly," the organization says, "ANA will remind the FCC that 'there’s no free lunch,' and that consumers receive information today at little or no cost in return for companies’ ability to reach them via directed advertising that surveys show are acceptable to consumers."

The FTC doesn't generally impose specific privacy rules on Google, Facebook and other Web companies that collect data from users over the age of 12. Instead, the agency says that companies must follow their own privacy promises. As a practical matter, the FTC ends up enforcing opt-out policies, but that's only because Google, Facebook and other Web companies promise users they can eschew online behavioral advertising.

The group's post comes the same day that former FTC Chairman Jon Leibowitz publicly criticized the new privacy proposal. Leibowitz -- who now represents ISPs -- also wants the FCC to take the same approach as the FTC.

He argues in a new op-ed that the current proposal, requiring consumers' opt-in consent to behavioral targeting, would prevent broadband providers "from efficiently monetizing online data in the same way that Google and Facebook have long done, with astounding consumer benefits."

He adds: "Such restrictions would exert upward pressure on broadband prices and undercut the FCC’s central mission of promoting broadband investment and adoption."

Leibowitz also repeats broadband providers' arguments that they lack a comprehensive view of consumers' Web activity. "ISPs cannot read encrypted communications, and most Internet traffic is now encrypted," he writes.

He adds that people often access the Web from multiple ISPs. "Suppose you use your Android smartphone on your home wi-fi network in the morning, switch to a wireless network during your commute, then switch to your work wi-fi network when you arrive at the office, and then switch again to a Starbucks wi-fi connection during your coffee break," he writes. "On the same Android device, you might have used four separate ISPs, and any given ISP handled only a fraction of your communications."

But privacy advocates counter that ISPs actually have access to a great deal of information about their subscribers. One recent study by Upturn found that 85% of the top sites in health, news and shopping don't fully support encryption.

For his part, FCC Chairman Tom Wheeler argues that broadband providers should be subject to more restrictions than Web sites for several reasons.

"We can choose not to visit a website or not to sign up for a social network, or we can choose to drop one and switch to another in milliseconds. But broadband service is different," he recently stated. "Once we subscribe to an ISP -- for our home or for our smartphone -- most of us have little flexibility to change our mind or avoid that network rapidly."

He added that ISPs have far-ranging views of subscribers' online activity. "Even when data is encrypted, our broadband providers can piece together significant amounts of information about us -- including private information such as a chronic medical condition or financial problems -- based on our online activity," he stated.

The FCC will accept initial comments on the proposed regulations through May 27.