The Federal Communications Commission has been amplifying its preference as the protector of consumers particularly under the stewardship of current chairman Tom Wheeler. The Commission has overstepped the boundaries established for consumer protection in the Communications Act of 1934. The Act does not mandate that the Commission try to impersonate its sister agency, the Federal Trade Commission or that Mr. Wheeler do an impersonation of Senator Elizabeth Warren.under the Communications Act. Should the Republicans take the White House and keep the Congress, refining the role of the Commission in an updated, streamlined Communications Act should be on top of the GOP’s agenda.
Let’s look at the extent of consumer protection under the Act itself. Section 151 of the Act describes the purpose of the Act and the Commission as regulating interstate and foreign commerce in communication by wire or radio. Regulation in the communications space should result in a nation-wide and world-wide communication system provided at reasonable charges that facilitates national defense, while promoting safety of life and property.
Section 151 does require that this rapid, efficient communications network be provided to consumers without discrimination based on race, color, religion, national origin, or sex. In other words, should decisions on how and where to deploy a network be based on consumers’ race, color, religion, national origin, or sex, the Commission is expected to step in and rectify the bad act. Also, if the consumer is facing unreasonable rates, the Commission would also be expected to step in and review these rates.
Section 222 requires that telecommunications carriers, a category in which the Commission has erroneously included broadband providers, exercise a duty to protect proprietary information related to a carrier’s customers. Assuming that the Commission’s net neutrality rules survive federal appellate court review, this would mean that broadband providers, for example, would have to disclose such information to broadband consumers upon their request. This section also requires that where a broadband provider receives customer proprietary information as a result of providing the consumer broadband services, the broadband provider can only use such information when providing the service through which it gathered the information, or to provide other services necessary for providing broadband services.
In other words, in today’s communications world where media and broadband are converging, broadband providers who themselves are information providers in search of advertising revenue, would be hamstrung from selling this information to third parties.
This presents the Commission and the markets a problem. If the Commission is gung-ho on competition throughout the internet ecosystem, would it be good policy to apply these 20th century rules to broadband/media companies doing business against media and data companies that have been coming into their own and subject to no regulation in a digital 21st century?
Personally I do not believe that in an age where consumer information is currency that there should be any consumer protection rules in this area. Yes, I am a member of the minority on this issue and will expound on it at some other time. I’ll leave this side note by saying that consumers have little to no property right in most of the information they want kept private and when they do share information it should be fair game for these companies to trade on.
In the meantime, Congress can reconcile the issue by expressing within the Communications Act that the Federal Trade Commission be the sole entry regulating consumer protection issues regardless of whether the firm in question is a broadband provider or an information portal such as Google. This would be a first step toward equating the treatment of two converging industries.