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

Privacy advocates are cheering news that Federal Communications Commission Chairman Tom Wheeler wants to impose new restrictions on broadband providers.

Not surprisingly, telecom and cable groups are less enthusiastic about the proposed new rules.

Wheeler today proposed that Internet service providers must obtain consumers' consent before drawing on their data for ad purposes. The proposal would allow ISPs to obtain consent on an opt-out basis for marketing related to "communications" services. For instance, an ISP that already sells a customer home broadband service could share information about that person with affiliates in order to send him or her ads for wireless service.

More significantly, the proposal also requires ISPs to obtain users' explicit consent before drawing on their Web-surfing data for all other types of advertising. The FCC tipped its hand that it favors that kind of restriction earlier this week, when it announced a settlement with Verizon Wireless that requires the company to obtain explicit consent before sharing information about customers' Web activity with outside companies. (That settlement stems from allegations that Verizon used "supercookies" to track mobile users for ad purposes, without informing them of the practice.)

The rules come after months of outreach by lawmakers and privacy advocates as well as broadband companies. Last July, a group of senators including Ed Markey (D-Massachusetts) specifically argued that ISPs should obtain consumers' "affirmative express consent" before sharing information about their Web use for ad purposes.

Today, Markey praised Wheeler "for releasing a proposal to ensure that broadband customers have their privacy protected."

The advocacy group Public Knowledge, which pressed the FCC to issue tough privacy rules, also cheered the proposal. "Laws enshrining the right of consumers to enjoy safe, secure communication date back to the very earliest days of the Postal Service; and, much as access to letter carriers was at that time -- and access to the telephone network was a generation ago -- access to broadband Internet today is an absolutely necessary conduit for participation in modern society," staff attorney Meredith Rose said in a statement.

But cable companies and telecoms clearly are gearing up to oppose Wheeler's proposal. They argue that broadband providers shouldn't be subject to tougher privacy rules than Web companies like Google and Facebook.

USTelecom President Walter McCormick said in a statement issued today that privacy rules should be "evenly applied across the Internet economy."

CTIA Vice President Debbie Matties added that the FCC's rules "must be consistent with the successful FTC approach."

Content companies and other so-called "edge providers" are governed by the Federal Trade Commission, not the FCC. The FTC prohibits companies from deceiving users or acting unfairly, but doesn't set out specific privacy requirements. When the FTC has brought privacy cases against Google, Facebook and other Web companies, the agency's complaints have centered on allegations that the companies engaged in deceptive business practices by failing to follow promises outlined in their privacy policies.

Consumer advocates rightly argue that broadband providers differ from edge providers like Google for several reasons. One is that ISPs have always had access to more data than any individual Web company.

Some experts have questioned whether that's still the case, given the growing use of encryption. But others have pointed out that most sites don't encrypt data, and that ISPs can glean information even when sites are encrypted.

Wheeler evidently agrees with the advocates on that point. "Even when data is encrypted, broadband providers can still see the Web sites that a customer visits, how often they visit them, and the amount of time they spend on each website," the FCC said today in a fact sheet. Using this information, ISPs can piece together enormous amounts of information about their customers -- including private information such as a chronic medical condition or financial problems."

Another difference between ISPs and edge providers is that consumers can't easily change broadband providers. "Consumers can move instantaneously to a different Web site, search engine or application. But once they sign up for broadband service, consumers can scarcely avoid the network for which they are paying a monthly fee," the FCC stated.

What's more, there are distinctions the FCC didn't mention today. One of the most significant is that consumers can easily control the cookie-based targeting deployed by Google, Facebook and others by deleting cookies, signing out of services, or accessing sites from different browsers. But it's much harder to prevent broadband providers from collecting data.

The FCC will vote at its March 31 meeting on whether to move forward with Wheeler's proposal. If so, the agency will seek comments from the public.