Senate Judiciary Committee Holds Hearing to Discuss FCC's Proposed Privacy Rules

FTC FCC U.S. Senate Privacy/Cyber Risk & Data Security

On May 11, the Subcommittee on Privacy, Technology and the Law of the Senate Judiciary Committee held a hearing titled “Examining the Proposed FCC Privacy Rules.” Present at the hearing were witnesses FCC Chairman Thomas Wheeler, FCC Commissioner Ajit Pai, FTC Chairwoman Edith Ramirez, and FTC Commissioner Maureen Ohlhausen. The focal point of the hearing was the FCC’s proposed rule (which comes after its Open Internet Order released in February 2015, designed to preserve net neutrality) on broadband internet services, which is, according to proponents of the proposal, intended to ensure that consumers’ personal information is adequately protected when Internet Service Providers (ISP) collect information on consumers using their products. According to FCC Chairman Wheeler’s opening remarks, the FCC’s proposed rule governing the privacy and security of consumer data is built on “transparency, choice, and security.” Commission members Pai and O’Reilly oppose the proposal, with Commissioner Pai commenting at the hearing that the proposal imposes “stringent regulation” on ISPs, in spite of Commissioner Wheeler’s November 2015 statement before the House Energy and Commerce Committee’s Subcommittee on Communications and Technology that the FCC “would ‘not be regulating the edge providers differently’ from ISPs.” In contrast to the FCC’s proposal, the FTC maintains a unified approach toward regulating ISPs and other online actors. Speaking to the FTC’s efforts to protect consumer information, Chairwoman Ramirez’s and Commissioner Ohlhausen’s joint testimony summarized the FTC’s enforcement, policy, and education work related to consumer privacy and highlighted recent FTC and FCC joint enforcement actions. According to Senator Leahy’s (D-VT) opening remarks, the FCC’s recent proposal raises the question as to whether FCC regulation of specialized broadband privacy issues is “unnecessary in light of the FTC’s general enforcement power.” Advocates of the FCC’s proposal, such as Senator Leahy, maintain that the FTC’s case-specific enforcement power cannot be a substitute for the FCC’s “expert rulemaking process”; while those in opposition, such as FCC Commissioner Pai, argue that the proposal “makes little, if any, sense.” Comments on the FCC’s proposal are due by May 27, 2016, with the reply comment period ending June 27, 2016.