Score one for the FCC! The Commission is not going to control the behavior of Internet edge (content) providers, at least for now. In an Order released on November 6, 2015 in RM-11757, the FCC dismissed a request from Consumer Watchdog that it initiate a rulemaking proceeding requiring Internet edge providers  such as Google, Facebook, YouTube, Pandora, Netflix and LinkedIn to honor “Do Not Track” requests from consumers. The rejection is in line with the Commission’s promises in the Open Internet Order that it would not become the arbiter of all Internet content. However, the Commission did leave the door open to additional regulation pending further rulemaking.

The key to the current dispute between the FCC and Consumer Watchdog is section 222 of the Telecommunications Act. This section governs how carriers must protect the information obtained from their customers or other carriers.  

Previously, the Commission adopted rules implementing section 222’s privacy protections with respect to voice providers and has amended those rules periodically to respond to emerging threats to consumer privacy. When the Commission decided to issue its Open Internet Order reclassifying broadband Internet access service as a Title II telecommunications service, how to handle section 222 became an issue:

Earlier this year, when the Commission reclassified broadband Internet access service (BIAS) as a telecommunications service under Title II of the Communications Act, it declined to forbear from applying section 222 to BIAS providers. The Commission found that broadband providers “serve as a necessary conduit for information passing between an Internet user and Internet sites or other Internet users, and are in a position to obtain vast amounts of personal and proprietary information about their customers.” Recognizing, however, that the existing rules were written for voice services, the Commission held it was “not persuaded that the Commission’s current rules implementing section 222 necessarily would be well suited to broadband Internet access service.”  It therefore forbore from applying the section 222 rules to BIAS services, “pending adoption of rules to govern broadband Internet access service in a separate rulemaking proceeding.” At the same time, the Commission specified that in reclassifying BIAS, it was not “regulating the Internet, per se, or any Internet applications or content.” Rather, as the Commission explained, its “reclassification of broadband Internet access service involves only the transmission component of Internet access service (Order at 1-2)."

On June 15, 2015, Consumer Watchdog filed a Petition for Rulemaking, requesting the FCC to quickly take action to rewrite the specific section 222 requirements to include specific language that would apply to broadband Internet access providers. However, Consumer Watchdog also went a step further, requesting the Commission to impose additional regulation on edge providers, including the honoring of “do not track” requests from customers.

It is imperative for the [FCC’s new section 222 rules] to include regulation of edge providers, which provide “content, applications, services, and devices accessed over or connected to broadband Internet access service[.] Consumers’ privacy concerns about the Internet extend far beyond the broadband providers who are impacted by Section 222.  Many consumers are as concerned – or perhaps even more worried – about the online tracking and data collection practices of edge providers. Because activities by edge providers pose the same threat to widespread broadband adoption as any privacy practice of broadband Internet access service providers, the Commission should, in addition to the CPNI [Consumer Proprietary Network Information] rules it intends to adopt, promulgate rules protecting the unauthorized use of consumers’ personal information by requiring edge providers to honor “Do Not Track” Requests (Consumer Watchdog Petition for Rulemaking at 2).

The Commission, however, decided the Consumer Watchdog proceeding went far beyond the level of regulation it was prepared to go. It stated that the request that edge providers honor the “do not track requests” is inconsistent with “its articulation of the effect of its reclassification of BIAS and the scope of the privacy practices it stated that it intends to address pursuant to that reclassification.”

The Commission’s decision is very smart politically. The DC Circuit Court of Appeals is scheduled to hear oral argument regarding the Open Internet Order in three weeks. For the Commission to attempt to retreat from its assertions in that Order that it adopted a modified “Title II for the 21^st century” with light regulation only (i.e., forbearing from many of Title II’s onerous requirements), it could have easily endangered its position with the Court. 

Now, the agency can enter oral argument with “facts” to support its claims that it’s regulation of the Internet will not include any regulation of content and would not control the behavior of edge providers. Whether the Commission will prevail in court is still an open question.  However, its action here ensures that it will not lose the argument even before it begins.

By Andy Regitsky, CCMI