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Three Big FCC Title II Privacy Questions – My Multichannel News Op-ed

Below is my op-ed “Privacy’s Big Three” on the FCC’s pending interpretation of its newly asserted Title II section 222 privacy authority. It is a side-bar in this week’s Multichannel News cover story “Who’s Watching Whom?” Click here for the full Multichannel article.

This succinct op-ed spotlights the three biggest privacy questions the FCC must grapple with here:

  1. Any privacy protection predictability?
  2. Any competitive privacy policy parity?
  3. An FCC Do Not Track List?    


Privacy’s Big Three

If the FCC’s reclassification of broadband as a Title II telephone service is not stayed in court, the ISP industry’s business model could be dramatically affected by how the FCC implements Section 222 “Privacy of Customer Information.”

Section 222 makes private, a customer’s communications network information, i.e. with whom they communicate and from where they communicate -- unless a user provides express consent for its commercial use. 

The FCC has some big and telling decisions to make.

Privacy Protection Predictability? Does the FCC believe in a consumer-centric implementation of Section 222 where consumers enjoy privacy protection predictability because the FCC interprets that consumers own or legally control their Section 222 private network information and that anyone who wants to commercialize it, must first get the consumer’s express consent? If not, can everyone but an ISP, use this legally private Section 222 information in any way they want, whenever they want, for most any commercial purpose they want, without notifying or securing the affected consumer’s consent?  

Competitive Privacy Policy Parity? Does the FCC want to promote competition, consumer choice and a level playing field by ensuring that all competitors compete based on the same consumer privacy protection rules? If not, will the FCC pick market winners and losers by allowing only FCC-favored competitors to earn revenues in targeted advertising?    

FCC Do Not Track List?  Will the FCC create a Section 222 Internet “Do Not Track” list like the FTC created the “Do Not Call” list enjoyed by three quarters of Americans? Why would it not be in the public interest for the FCC to use Section 222 to make available a similarly simple and convenient mechanism for Americans to choose to opt out of unsolicited tracking of where they go on the Internet via a national FCC Do Not Track list that would protect consumers’ private information from commercialization without permission?   

In short, how the FCC implements it’s newly asserted Section 222 “Privacy of Customer Information,” authority will speak volumes about the FCC’s true priorities. Will the FCC choose to protect consumers’ privacy interests or Silicon Valley’s advertising interests?   

Scott Cleland is chairman of, an e-forum promoting broadband competition supported by broadband interests.