Broadband industry vexed by looming regs

Broadband industry officials say they’re baffled by federal guidance on privacy restrictions they must follow under forthcoming net neutrality rules, calling a recent government missive “stunningly unhelpful” and suggesting it was designed to combat legal challenges to the sweeping regulations.

The Federal Communications Commission notice — an advisory issued by the agency’s Enforcement Bureau — addresses privacy rules that broadband providers will be subject to when the net neutrality order takes effect on June 12.

{mosads}The agency contends that the advisory, issued last week, was aimed at explaining what companies should do in the interim period before they have formal rules to follow. But some industry representatives say it seems to create a line in the sand — without saying where that line lies.

“I’m hesitating because we just found it stunningly unhelpful,” said one telecom lawyer who represents a client opposed to the net neutrality order. 

“The main directive of that notice said that providers should act in good faith and observe the core tenets of privacy policy,” the lawyer said. “And, you know, they’re sort of oblivious to the fact that for years now there’s been this ongoing debate and discussion in Washington and throughout the country on what does privacy mean, what are the core tenets of privacy. And to come out and say, ‘well just do that,’ it’s just laughable.”

The net neutrality rules classify broadband Internet service as a utility for the first time, which makes service providers subject to a host of new regulations. Among them is Section 222 of the Communications Act, which says that telecommunication companies have “a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers.”

The FCC has said it won’t make Internet service providers comply with the privacy rules that already exist for telephone companies and has promised to set rules specifically for broadband companies.

The advisory says that while enforcing the section of the law pertaining to privacy, the agency “intends to focus on whether broadband providers are taking reasonable, good-faith steps to comply with Section 222, rather than focusing on technical details.”

It points out that Internet service providers can ask the Enforcement Bureau for an opinion on whether their “their anticipated future course of conduct comports” with the net neutrality order, but some say that providers are wary of speaking with the bureau.

“Nobody wants to go in and talk to them about anything, frankly, which is not the healthiest of environments, but that’s sort of the box they put us in,” the lawyer whose client opposes the net neutrality order said.

Some speculate that the timing of the notice isn’t coincidental, coming two days before the FCC filed its response to industry requests for the courts to stay parts of the order, including the privacy rules.

“Well, it’s interesting that they have put it out at this time,” said Barbara Esbin, a partner at the law firm Cinnamon Mueller and a former FCC staffer.

“In light of what the bureaus wrote when they rejected a request for stay, maybe the commission felt it prudent to put something like this out,” she said.

In its Friday response to the request for a stay of the net neutrality order, the FCC noted that companies felt unclear about their obligations now that they are subject to Section 222.

“But the FCC’s Enforcement Bureau recently announced it intends to target only bad faith, unreasonable behavior pending the promulgation of section 222 rules or similar guidance,” it said, citing the two-day-old advisory.

A representative for the FCC declined to comment on the agency’s strategy in the litigation. Some broadband companies have their own incentive to portray the FCC’s guidance on the privacy rules as unclear, because it is an argument some of them are making in court.

The agency argued in its filing with the court that its decision not to apply the rules for phone companies to broadband providers was a help, not a hindrance, to companies before the agency makes formal rules for Internet service providers.

An FCC representative said Tuesday that the advisory was simply guidance about the agency’s thoughts on the issue and not evidence of a new rule or any changes to existing rules.