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Paul Zimmerman

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Advertising Industry Asks for More Time to Weigh in on Controversial FCC Proposal

The Association of National Advertisers (ANA) has asked the Federal Communications Commission (FCC) for an additional two months to comment on proposed privacy rules that would limit broadband providers' ability to engage in online behavioral advertising. The FCC proposal recently cleared a key hurdle when, in a 3-2 vote, the commission adopted the Notice of Proposed Rulemaking, thereby initiating a public comment period. A key provision in the proposed privacy rules requires broadband service providers to obtain affirmative opt-in consent for the use and sharing of data that has not been specifically collected for the purpose of providing communications-related services. The ANA wants more time to interface with its members and develop an organized and comprehensive response to the FCC’s unprecedented proposal.

The FCC called for initial comments by May 27. However, the ANA is asking for an extension to July 26. Several broadband providers have already objected to the proposed rules, which would apply to them, but not to other tech companies like Google or Facebook, that offer Web services and content. Critics of the FCC’s proposal have been quick to point out that the Federal Trade Commission (FTC) already possesses authority to promulgate consumer privacy rules within the broadband industry, and additional regulations from a separate agency would only create confusion and inequity.

The FCC is seeking public comment on the key provision requiring broadband providers to obtain subscribers' explicit consent before using data about their Web-surfing activity to serve them targeted ads. The FCC's 147-page notice of proposed rulemaking also poses more than 500 questions, including whether certain forms of tracking technologies should be banned.

Last week, at the ANA’s Advertising Law and Public Policy Conference in Chicago, the ANA signaled its alarm over the proposed FCC rules. Dan Jaffe, the ANA’s Group Executive VP for Government Relations, argued that "we simply don't need a 'brawnier' or 'additional' cop on the beat. The addition of the FCC to the regulatory landscape would inject confusion and uncertainty into privacy regulation.” He went on to note that “legal analysts differ as to whether the FCC has the statutory authority to adopt privacy protection policies” and encouraged all ANA members to provide input on how the proposed rules would impact their business.

In support of its request for an extension, the ANA stated that it needs additional time in order to analyze the "significant and far-reaching" implications of the potential rules. In a prepared statement, Mr. Jaffe suggested that the proposal includes "numerous proposed requirements with potentially complex impacts regarding the privacy of collected and user data.” He further indicated that “for groups like the ANA with an extremely broad and diverse membership, being able to receive full and thoughtful input and then to respond ... will take time and careful consideration."

M&R will keep abreast of this matter and, as the proposed rules proceed through the public comment phase and inch closer to passage, will share significant developments. The FCC is wading into somewhat uncharted territory, and the outcome of this rulemaking process is likely to have a lasting impact upon the ability of service providers and advertisers to track and utilize consumer data.

This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.