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FCC proposed privacy rule, FTC comment need to be reviewed by lawyers

The Federal Trade Commission’s (FTC’s) Bureau of Consumer Protection has filed a comment with the Federal Communications Commission on the FCC’s proposed privacy rule for broadband internet access service providers.

When asked for his own comments on the FTC’s comment, David Vladeck, a professor at Georgetown Law School who formerly was director of the FTC's Bureau of Consumer Protection, told Inside Counsel that the FTC comment “makes clear the FTC’s position on a wide range of consumer privacy issues, and it would not be unreasonable to assume that the FCC will take the FTC’s comments to heart and may adopt some, perhaps many or most, of the FTC’s recommendations.”

“Second, for lawyers who advise FCC-regulated parties, it would be worth reviewing the FTC comments closely because it is possible, if not likely, that many of the FTC’s proposed modifications will be adopted in whole or in part by the FCC,” Vladeck said. Also, he recommends that companies should comment on the FCC’s rule and make plans now to ensure compliance.

“If one studies the FTC comments closely, the comments are by and large supportive of the FCC’s proposal and focus mainly on urging fine-tuning, clarifications and to some extent strengthening the proposal,” Vladeck said. “There is no roadblock to FCC regulation. For that reason, regulation is on the horizon and woe to lawyers who wait until the final rule is issued to think about compliance.”

He explains, too, that the FTC often files comments with other agencies working in fields related to those on which the FTC works. “During my tenure at the FTC, we had cordial working relations with our FCC counterparts, and I am sure that that collegiality continues,” he said. “With the reclassification under Title II, the FCC will (assuming, as I do, that the courts will uphold the FCC’s actions) have greater responsibility in the field of consumer privacy and published an NPRM soliciting comment on its proposal. No doubt that the FCC will receive a large volume of comments. But the FTC has a unique perspective to offer given its long and extensive track record in this area, and the FTC has shared its comments on the public record to both assist the FCC in fine-tuning its proposal and to ensure a high degree of transparency in the rulemaking process.” 

Moreover, Julie Brill, a former FTC commissioner who is now co-leader of Hogan Lovells Privacy and Cybersecurity practice group said, “Stakeholders on all sides of this issue will find things in the FTC's comment that they agree with and things they disagree with. But one thing is clear: the FTC's participation in the FCC proceeding underscores the importance of the FCC's effort and its larger potential impact on domestic and international privacy policy discussions."

In addition, Pantelis Michalopoulos, an attorney at Steptoe & Johnson, told Inside Counsel, “The most important take-away from the FCC’s privacy proposal and the FTC’s comments on that proposal is this: the FCC’s proposal is narrow, as it applies to a small subsection of communications and internet companies – only providers of broadband Internet access; whatever its merits, this proposal should not be viewed as a blueprint for generally applicable privacy rules.”

“The genesis of the FCC’s proposal was the FCC’s decision last year to reclassify broadband internet access as a telecommunications service,” he explained. “This in turn made the service subject to a provision of the Communications Act that requires telecommunications carriers to protect the confidentiality of proprietary information ‘of, and relating to,’ their customers. The FCC has proposed rules for applying this provision to broadband internet access providers. In the process, the FCC has also proposed a broader interpretation of the law.”

Michalopoulos further explained that the suggested changes address issues in the FCC’s notice of proposed rulemaking, including: how personally identifiable information is defined, the structure of privacy notices, the role of consumer notice and choice in various business practices, and the proposed regulations on data security and breach notification.

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Ed Silverstein

Ed Silverstein ( is a veteran freelance writer and and editor for magazines, websites and newspapers. He writes frequently for ALM Media's

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