• by Wendy Davis , Staff Writer @wendyndavis, December 14, 2023

The ad industry group Privacy for America this week urged the Federal Communications Commission to avoid issuing new privacy regulations for broadband providers.

Instead, the organization argues in a written filing that Congress, not the FCC, should “set a national privacy standard” that would apply to broadband providers as well as other companies that can mine data about consumers.

The comments come in response to the FCC's proposal to reinstate the Obama-era net neutrality rules, including regulations banning providers from blocking or throttling content, and charging higher fees for prioritized delivery.

The proposal, if adopted, could also pave the way for the FCC to issue privacy regulations.

The agency noted in its proposal that internet service providers “are situated to collect vast swaths of information about their customers, including personal information, financial information, and information regarding subscriber online activity.”

The agency added: “We further believe that consumers currently may not fully comprehend -- and therefore may not be able to meaningfully consent to -- ISPs’ collection, processing, and disclosure of customer information, including potentially through the use of artificial intelligence models.”

Privacy for America argues in its comments that the FCC's proposal “represents an unreasonable regulatory step that will harm consumers and the economy, and prevent innovation.” The group's members include the American Association of Advertising Agencies, Association of National Advertisers, Digital Advertising Alliance, Interactive Advertising Bureau, and Network Advertising Initiative.

The FCC issued broadband privacy rules in 2016, but Congress repealed them before they took effect. Those regulations would have required broadband providers to get consumers' opt-in consent before harnessing information about their web activity for ad targeting purposes.

Privacy advocates cheered those rules, while the Association of National Advertisers (and other advertising and business groups) opposed them.

The ad groups argued that broadband providers shouldn't be required to follow tougher privacy standards than other companies that can collect data -- such as search engine providers or social networking platforms.

Consumer advocates countered that Comcast, AT&T and other broadband providers should be subject to heightened rules -- largely because broadband carriers can access all unencrypted traffic on the network.

When Congress repealed the 2016 rules, it did so through the Congressional Review Act -- a 1990s law that allows federal lawmakers to revoke some agency decisions, and also prevents the agency from reissuing “substantially” similar rules.

As of today, there's little agreement on what the phrase substantially similar means in this situation.

Privacy for America notes in its comments that the phrase hasn't been “examined by the courts in great detail,” but suggests that any rules that single out broadband providers would be invalid.

“The fundamental basis for Congress’s repeal of the prior broadband privacy rules was because they focused solely on ISPs and Congress wanted instead to have uniform, technology-neutral rules that apply across-the-board,” Privacy for America writes.

But others argue the FCC has room to promulgate broadband-specific privacy rules, despite the 2017 repeal by Congress.

Advocacy group Public Knowledge argues in comments filed Thursday that any new privacy rules issued by the FCC likely won't be substantially similar to the old ones given “changes in the broadband marketplace, data collection practices, and threats to consumer privacy” since 2016.

That group also notes that the FCC is empowered to “protect consumers from unjust and unreasonable practices,” including ones affecting privacy.