Senate to Examine FCC’s Privacy Scheme

Bright and early Tuesday morning – at 10:00 AM Capitol Hill time – the Senate Commerce Committee will hold a hearing on the FCC’s proposed privacy rules, How Will the FCC’s Proposed Privacy Regulations Affect Consumers and Competition? The hearing follows a very strong criticism of Chairman Wheeler’s leadership delivered on the Senate floor last Thursday by Chairman Thune. Thune is deeply bothered by the partisan and non-independent nature of the agency under Wheeler’s reign, with good reason according to this blog post by AEI scholar Mark Jamison.

The post cites an article by John Eggerton in Multichannel News on Commissioner Ajit Pai’s criticism of the partisan rancor at the FCC:

Republican FCC commissioner Ajit Pai said the partisan rancor at the FCC over the past year-plus has been unprecedented in scope, pointing out on C-SPAN’s Communicators series now about half of the public meeting votes are strictly along party lines, while that number was more like 10% under the previous chairs. He said that on enforcement matters, there have been more party line votes in the last 14 months than in the previous 43 years.

While Wheeler promised during his confirmation and the first few months of his tenure to promote competition and to consult closely with Congress, his consultations have been limited to Democratic members of the House and Senate. Most disturbingly, Wheeler has ignored Commission staff and relied on members of Congress to collect and analyze data. The inability of Congress to do this sort of thing correctly is the main reason the FCC was created as a supposedly independent, expert agency in the first place.

Technology regulation requires a level of knowledge in engineering and economics that is simply not present among Senate staffs, especially those of minority party members. The set top box proceeding was justified on the basis of an extremely cursory analysis of rental fees, for example, that did not correctly account for the functional differences between today’s digital video recorders and the dumb channel changers of the past. On the basis of that shoddy survey, the FCC moved forward with plan that’s totally unworkable because the standards it relies upon simply don’t exist.

The privacy NPRM has similar defects insofar as it relies on an analysis of the snooping powers of ISPs that fits the NSA fairly well but has nothing to do with the practical and tangible powers of ISPs. Chairman Wheeler’s logic is “if you hate the NSA, you should punish the ISPs.”

Here’s the witness list for the hearing:

  • Mr. Dean C. Garfield, President and CEO, Information Technology Industry Council
  • The Honorable Jon Leibowitz, Partner, Davis Polk & Wardwell; Co-Chair, 21st Century Privacy Coalition
  • Professor Paul Ohm, Professor of Law, Georgetown University Law Center
  • Mr. Matthew M. Polka, President and CEO, American Cable Association
  • Professor Peter Swire, Huang Professor of Law and Ethics, Scheller College of Business, Georgia Institute of Technology

Garfield leads a trade association with very broad membership in Silicon Valley, and I expect him to offer middle-of-the-road testimony since he has both advertisers and equipment vendors among his members. It will interesting to see whether and to what extent he tries to affirm the approach offered by the NPRM. Garfield is an honest player, so his testimony will be significant.

Leibowitz, President Obama’s first Federal Trade Commission chairman, has been very critical of Wheeler’s approach because it creates a gaping loophole in the very important Privacy Framework developed by FTC staff during his tenure. While Leibowitz is every bit as loyal to his party and his president as Wheeler, he is less inclined to oscillate than the FCC’s leader. I expect him to emphasize the virtues of a uniform standard.

Ohm, a former Colorado Law School professor and Silicon Flatirons fellow, has consistently toed the Google line on privacy, insisting on one standard for advertising-driven “edge services” and and entirely stricter regulation for Internet Service Providers. I expect he will offer testimony consistent with the line he has historically followed.

Matt Polka leads the trade group of small cable companies, and I expect him to support the interests of his members in terms of both a robust Internet and a profitable broadband sector.

We’ve written approvingly about Professor Swire, an advocate of putting the debate on a sound factual foundation. I expect he’ll do his darndest to separate fact from fiction.

I won’t be surprised if there are some fireworks at the hearing, and I’ll be updating this post as soon as I’ve had a chance to see the hearing. Should be fun for those of us who live for this sort of thing.


  • Christopher Columbus

    I look forward to reading your analysis of the hearing!

    One quick note: the link to the past coverage of Professor Swire appears to be broken.

    • Richard Bennett

      Thanks for spotting that, I’ve fixed it.

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