FCC Commissioners' INTX Panel Becomes Set-top, Broadband Privacy Debate
BOSTON -- A panel Tuesday of the FCC's four regular commissioners at INTX 2016 morphed into a referendum largely along party lines on the agency's set-top box rulemaking and broadband privacy rulemaking. Commissioners Mignon Clyburn and Michael O'Rielly repeatedly debated the FCC's overall regulatory role. Section 222 in Title II of the Communications Act deals with telephone records, not broadband data services, so it can't be cited as a basis for broadband privacy regulation, O'Rielly said: "The words on the page [of the law] actually have to mean something." But Clyburn said "We are not in the 1800s" and it's up to regulatory bodies to interpret how older laws apply to modern technology. It's the job of the legislative branch to fix those laws, O'Rielly responded. The panel was taped as an episode of C-SPAN's The Communicators.
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Clyburn said she's "an eternal optimist" on the FCC's ability to craft set-top rules that benefit consumers while addressing the privacy and copyright protection worries that were raised by opponents. She said the NPRM is "healthy" as a route to debate, data collection and solicitation of feedback that could include making some decision. "If there is a better mousetrap, we have an opportunity to view that," she said.
A notice of inquiry would be a better approach, O'Rielly said. "I'd take the current current proposal and throw it in the garbage," he said to applause from the cable executive audience. The set-top NPRM "is not a conversation, it's a dictation," Pai said. O'Rielly agreed that the item the commissioners ultimately will vote on probably already is being written and will be decided perhaps in October.
"My mind is open," Rosenworcel said. The set-top market "could use competition," and the proposal raises privacy, copyright protection and diverse programming questions that need to be addressed, she said.
O'Rielly and Pai said the FCC should defer to the FTC's broadband privacy protection model. The NPRM asks about an FTC-style opt-in/opt-out privacy rules approach, Commissioner Jessica Rosenworcel said. She said a bigger priority than harmonization with FTC rules should be harmonization within the FCC, considering cable and satellite operators operate under different privacy regulations. She also said there should be a delay in the NPRM for more comments. Clyburn said it's important to keep the FCC's working relationship with the FTC "to ensure there's a seamless line" on consumer protection, but the FCC has particular expertise in communications areas.
NCTA President Michael Powell's charge Monday that the FCC is waging "relentless regulatory assault" against cable (see 1605160033) "was subtle," Rosenworcel said tongue in cheek. Countered O'Rielly, Powell was "not too far of the mark. To be fair, it is not like the cable industry is alone in that."
Some commissioners questioned whether the FCC has the resources and manpower to adequately tackle privacy issues. "We have been in a budget crunch [while] the issues are getting more complex," Clyburn said. Rosenworcel said the FCC has fewer engineers working there than it has in decades, with many nearing retirement age. She said she hopes the agency will institute an Honors Engineering Program like its two-year Honors Attorney Program for recent law school graduates. Pai said the issue isn't inadequate resources but misapplication of them, with set-tops or the special access market "distract[ing] us from the core mission."
Beyond the work cable already is doing in broadband deployment, Clyburn said she would like operators to offer more tiered options aimed at low-income subscribers and opt into participating in the Lifeline program. "If it makes business sense, I would love you to expand your reach ... to more Americans in those nooks and crannies" currently without broadband, O'Rielly said.
Multiple commissioners said there should be opportunities within the agency for the kind of group commissioner discussion they had on the INTX stage. "We would be better off if we had the ability to visit with one another and speak candidly," Rosenworcel said. Congress would have to change the Sunshine Act, Pai said, adding the FCC has more important process reforms it should adopt first, such as publishing in advance items to be voted on and allowing commissioners to let their opinions be known before their votes.
Asked whether a Communications Act update is needed to help the agency deal with the increased regulatory complexity of the issues facing it, multiple commissioners said they would be responsive to any new laws Congress passes. Pai said the other half of the equation is leadership committed to following those laws, saying the FCC's current leadership has shown "deliberate indifference" in examples like its joint sales agreements policy -- a criticism he has raised more than once (see 1603150064).