• by Wendy Davis , Staff Writer @wendyndavis, June 9, 2016

Cable companies have spent the better part of five months arguing that the FCC's proposed new set-top rules won't protect people's privacy.

The rules, if passed, will enable app and device makers like Google to develop boxes that can access pay-TV programs. The new rules also will allow consumers to access over-the-top services as well as pay TV from a single device, and more easily stream pay-TV shows to tablets or smartphones. The White House backs the proposal, as do numerous consumer groups.

But the proposed rules will not subject Google or other companies to the same privacy rules as cable providers. For that reason, the cable industry group Future of TV Coalition wrote back in February that the FCC's proposal "will strip viewers of vital safeguards for their viewing choices and add 'what we watch' to the mountains of data being mined and exploited by privacy scofflaws like Google, alongside their existing files of what we search for on the Internet; what we say in our gmail at home, work, and school; what happens in our 'Nest'-connected homes; and where we go using Waze and Google Maps."

Today, a coalition of digital rights advocates -- including supporters of the FCC's set-top box proposal -- directly challenged the cable industry on set-top box privacy.

Public Knowledge, the Center for Digital Democracy, Consumers Union and others alleged in complaints filed with the FCC and Federal Trade Commission that three pay-TV providers -- AT&T, Comcast and Cablevision -- are sharing set-top-box data without consumers' explicit consent.

"AT&T pulls data 'from millions of set-top boxes' and analyzes consumer viewing history and uses these data to target consumers based on their viewing profile," the groups allege in their FCC complaint.

"Companies like Cablevision leverage granular data and precise details of household viewing behavior, and combine it with third-party data covering other intimate details of consumers’ lives to analyze and target specific individuals with video advertising across a range of screens," the complaint reads.

The groups also point to Comcast's recent moves in addressable TV. Among others, Comcast recently acquired Visible World, which says it draws on data from Smart TVs to target ads.

The cable companies allow consumers to opt out of the use of their data. But Public Knowledge and the other advocates say the law requires cable companies to consumers' obtain opt-in consent before sharing data about them for marketing purposes.

The cable-privacy law prohibits operators from sharing personally identifiable information about subscribers without their prior consent.

To date, there have been "almost no published FCC decisions" interpreting that specific law, Public Knowledge's Harold Feld says in an email to MediaPost.

But he adds that TV distributors "do not seem to have invested heavily in the Big Data business until relatively recently, so there hasn't been a lot of opportunity to develop precedent."

Feld also says that other FCC decisions suggest that cable companies must obtain consumers' opt-in consent before using set-top box data for ad targeting.

For their part, AT&T and Comcast say they comply with the existing rules.

"AT&T’s use of anonymous and aggregate set-top box information is entirely consistent with the statute," Jim Cicconi, senior executive vice president of external and legislative affairs, stated on Thursday.

Comcast added that the complaint "is off base, is misleading on both the facts and the law, and is little more than an attempt to divert attention from a set of flawed proposals that the FCC has put forward."