FCC’s Haphazard Privacy Policy Gaps Disserve Consumers

The FCC’s proposed broadband privacy rules are haphazard and have more random and conflicting “gaps” than Swiss cheese has holes. 

That’s because the FCC’s approach to privacy is obviously jurisdiction and technology driven, not consumer-driven.

When will the FCC put consumer privacy protection first, and join with the FTC to work with Congress to comprehensively update privacy legislation for the 21st century?

Consumers deserve so much better than this.  

Let’s count the arbitrary and haphazard privacy gaps in the FCC’s proposed privacy rules.

FTC Privacy Enforcement Gap: The FTC recently claimed in court that there is now a privacy “enforcement gap” as a result of the FCC’s reclassification of broadband as a common carrier and as a result of an August Ninth Circuit Appeals Court decision that ruled 3-0 that the FTC did not have any legal jurisdiction over common carriers as a result of the FCC reclassification decision.

The FTC’s pleading to the court urged that FTC authority over common carriers “is exceptionally important to consumer protection… across the economy.” But for the FCC’s controversial reclassification, and the FTC’s own overreach that triggered examination of the extent of the FTC’s Section 5 authority, this FTC privacy “enforcement gap” would not exist.

This “enforcement gap” is entirely of the FCC and FTC’s own making.

FCC Privacy Enforcement Gap: What most everyone forgets is that since the time the FCC reclassified broadband as a common carrier and stated it would regulate broadband privacy under Title II, communications consumers went practically from having substantial FTC privacy enforcement protections to having no FTC or FCC consumer privacy protections at all.

Overall the FCC’s proposed gap-ridden, and confusing privacy protections would be a big step backward for communications consumers’ privacy from when the FTC was responsible for communications privacy.

FCC Privacy Authority Gap: The FCC’s Title II broadband privacy authority applies to only to communications that is “telecommunications” and not “communications” that are classified “information services” that may be voice/video calls, chats, conference calls enabled by Google, Facebook, Apple, Microsoft, etc.

So the Federal Communications Commission will only protect some “communications” privacy for some types of private “communications,” not all communications as its name and privacy rhetoric imply.

FCC Edge-Core Privacy Gap: The original FCC Chairman/Staff, Open Internet Order that circulated for a vote in 2015, proposed symmetrical Title II treatment of both upstream and downstream broadband traffic to and from a broadband ISP customer as Title II “telecommunications.”

However, as a result of a last minute ex parte filing/pressure from Google, the FCC arbitrarily exempted edge providers’ downstream half of broadband communications from Title II reclassification as “telecommunications.”

That edge exemption was based on Google’s “immaculate telecommunication” theory that the commercial access service between a broadband provider and an edge provider that the FCC lawyers and the Verizon Court thought existed -- was “imagined” or “non-existent” according to Google.

This FCC political rejection of reality created an edge-core privacy gap where similar private traffic is treated dissimilarly for privacy purposes.

FCC-FTC Set-Top-Box Privacy Gap: The FCC’s pending AllVid Set-Top-Box NPRM depends on the FTC to serve as the FCC’s privacy enforcement backstop to make sure OTT video competitors/edge providers abide by FCC’s video privacy rules.

But the subsequent Ninth Circuit Court Appeals decision now calls into question if Google Fiber’s common carrier status makes it exempt overall from FTC jurisdiction or if Amazon’s common carrier video business plans in the EU could also trigger an overall Amazon exemption from FTC jurisdiction.

Ironically on one hand, the FCC wants its FCC video privacy rules to apply to edge providers and to be enforced by the FTC, which can’t enforce them, but on the other hand, does not want its FCC Title II privacy rules to apply to edge providers, when the FCC could assert the authority to enforce them.

This arbitrariness could be considered FCC privacy fairness and credibility gaps.   


If the FCC cared about consumer privacy protection, it would work purposefully and diligently with Congress soonest to create a coherent, consumer-centric, technology-neutral, privacy policy that actually advances and serves American consumers’ privacy interests. 

As it stands now, the FCC’s public representations about how much consumer privacy their proposed privacy rules deliver to the public would not pass muster with the FTC’s fair representation standard as it has been repeatedly applied to companies’ privacy policy representations.   

Consumers deserve so much better than this.


Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an internetization consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google and also before the relevant House oversight subcommittee on Google’s privacy problems.