On October 19, 2016, Walter B. McCormick, Jr. and Jonathan Banks of USTelecom – The Broadband Association, spoke with Commissioner O’Rielly and his Legal Advisor Amy Bender by telephone. The parties discussed the draft Commission Order on broadband privacy and the need to further harmonize the FCC’s proposed rules with the Federal Trade Commission’s current framework.
In particular, the parties discussed how such harmonization is particularly important in the context of web-browsing history 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 enough thorough examination as to its broader economic impact to be mandated by rule at this time. USTelecom expressed that such harmonization is necessary, not only to ensure that consumers have consistent privacy rights, but also that government agencies are speaking with one voice with respect to their respective rules and policies.
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.