Congress Rolls Back FCC Privacy Regulations

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On March 28, 2017, Congress passed legislation (S.J. Res. 34) that rolled back privacy regulations recently adopted by the Federal Communications Commission. The resolution passed the Senate by a vote of 50-48 and the House by a voted of 215 to 205. This is one of several sets of regulations Congress is rolling back under the authority of the Congressional Review Act of 1996. Under this statute, Congress can nullify administrative regulations by simply passing a joint resolution of disapproval.

On December 2, 2016, the FCC adopted a set of regulations entitled “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services” (81 Fed. Reg. 87274 (December 2, 2016)). As noted in the Federal Register noted, these rules focused “on transparency, choice, and data security, and provides heightened protection for sensitive customer information, consistent with customer expectations.” Specifically,

[t]he rules require[d] carriers to provide privacy notices that clearly and accurately inform customers; obtain opt-in or opt-out customer approval to use and share sensitive or non-sensitive customer proprietary information, respectively; take reasonable measures to secure customer proprietary information; provide notification to customers, the Commission, and law enforcement in the event of data breaches that could result in harm; not condition provision of service on the surrender of privacy rights; and provide heightened notice and obtain affirmative consent when offering financial incentives in exchange for the right to use a customer’s confidential information.

This resolution was supported by the telecommunications industry citing the cost of implementing the regulations which had not yet gone into effect. However, it was strongly opposed by privacy and consumer protection groups on the basis that it permits telecommunications companies to collect and sell consumer information, sometimes without the consumer’s knowledge. The White House supports the measure and President Trump is expected to sign it.