On October 18, 2016, Walter B. McCormick, Jr., Jonathan Banks, and Lynn Follansbee of USTelecom – The Broadband Association, met separately with Commissioner Clyburn and her Legal Advisor Claude Aiken, and with Travis Litman, Legal Advisor to Commissioner Rosenworcel.
The parties discussed the draft Commission Order on broadband privacy and the need to further harmonize the items considered sensitive to be consistent with the Federal Trade Commission’s definition of sensitive information. USTelecom expressed that the harmonization of the privacy standards throughout the internet ecosystem is extremely important to ensure that consumers have consistent privacy rights. In order to achieve this consistency, it is essential that government agencies are speaking with one voice with respect to their respective rules and policies.
In particular, the parties discussed how such harmonization is particularly important with respect to web-browsing history and first-party marketing and that the Commission should not expand the definition of sensitive information to include such a broad area as all web-browsing history. USTelecom advocated that web browsing and app usage data should be considered sensitive only to the extent the content is otherwise categorized as sensitive information. Any other approach contradicts the more flexible regime applicable to the rest of the digital advertising ecosystem and has not had thorough enough examination as to its broader economic impact to be mandated by rule at this time.
USTelecom also advocated that first-party marketing should not require an opt-out form of consent. Marketing to one’s own customers is already something that is a common part of the consumer experience not only just in the context of the internet economy but all over. Given its common application in commerce, it should be considered to have implied consent. Applying an opt-out threshold adds an unnecessary level of notice and consent requirements that would only serve to impede broadband providers from keeping its customers apprised of new products, services, and discounts that are available to them.