In a letter to Federal Communications Commission (“FCC” or the “Agency”) Chairman Ajit Pai, 50 Republicans in the House of Representatives urged the FCC to rectify the 2015 Open Internet Order’s reclassification of broadband under Title II of the Communications Act of 1934 (the “Communications Act”).  Prior to the 2015 reclassification, online privacy was protected by the Federal Trade Commission (“FTC”).  In reclassifying broadband, the “FCC created a blind spot where the [FTC’s] common carrier exception left internet service providers without a privacy regulator,” the letter said.  The reclassification “inappropriately” removed internet service providers from the jurisdiction of the FTC.

The letter, signed by House Energy and Commerce Committee Chairman Greg Walden (R-OR), Communications and Technology Subcommittee Chairman Marsha Blackburn (R-TN), and Consumer Protection Subcommittee Chairman Bob Latta (R-OH), further indicates that, “[t]he FTC’s time-tested approach to privacy has protected Americans’ [sic] since the dawn of the Internet.  An FCC approach that mirrors the FTC will continue to protect consumers in this tumultuous time.” 

Until the FCC rectifies the reclassification that removed internet service providers from the FTC’s jurisdiction, the lawmakers advised the FCC and Chairman Pai to continue to hold internet service providers to their privacy promises.  The authority vested to the FCC under Sections 201 and 202 of the Communications Act charge the Agency with protecting consumers against unjust and unreasonable practices.  “We believe this language provides the necessary authority to protect customers in a similar manner to how the FTC protects consumers under its authority to prevent unfair and deceptive acts and practices,” the letter said. 

The letter was sent after U.S. President Donald Trump signed a bill repealing FCC regulations adopted in October 2016 under the Obama Administration, requiring internet service providers to do more to protect customers’ privacy, including obtaining customer consent before using precise geolocation, financial information, health information, children’s information, and web browsing history for advertising and marketing purposes.  The repealed regulations were the result of the FCC’s efforts to apply the Communications Act’s privacy requirements to internet service providers after reclassifying them in 2015.