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Paul Zimmerman
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Coalition of Ad Industry Orgs Asks for More Time to Review FCC Privacy Proposal

Update (4.29.16)The Federal Communications Commission (FCC) has rejected the ad industry's request to extend the comment period on proposed privacy rules that would limit some forms of behavioral targeting. The decision means that initial comments on the controversial privacy proposal are still due by May 27, 2016.

Originally Published April 25, 2016

The Federal Communications Commission’s (FCC’s) privacy proposal targeting internet service providers is continuing to draw a strong response from the advertising industry. Recently, the FCC voted 3-2 to move forward with Notice of Proposed Rulemaking (NPRM) that would require broadband providers to obtain subscribers' explicit consent before using data about their online activity to serve them targeted ads. A coalition of advertising industry organizations, including, among others, the Interactive Advertising Bureau, American Association of Advertising Agencies, Direct Marketing Association, and the self-regulatory group Network Advertising Initiative have argued in a new filing that they need more time to gather input from their members, and to evaluate the FCC’s proposed regulations. This comes on the heels of a similar request from the Association of National Advertisers, lodged in early April. The public comment period on this unprecedented privacy provision will no doubt garner significant attention from advertisers, brands, technology companies and consumer advocates.

In their filing with the FCC, the advertisers contend that the agency wrongly "seeks to construct a new data security regime, notwithstanding preexisting and overlapping state and federal laws, jurisdictional and enforcement conflicts with other agencies, repeated instances of legislative and executive forbearance in this area, and ongoing policy debates in Congress." The agency has called for initial comments by May 27. The industry groups want the FCC to extend that period to July 26 so that they can empower their members to consider the proposal and voice their opinions.

The group asserts that “additional time is necessary to evaluate the specific terms of, and the legal authority supporting, an NPRM that was drafted and adopted without direction from Congress but will have a policy impact well-beyond its purported limited application to the telecommunications sector.” This is consistent with similar arguments made by such entities as the Federal Trade Commission and National Cable & Telecommunications Association who have contended, among other things, that the proposed rules are unduly burdensome and would create a confusing and inequitable patchwork of federal privacy regulations.

M&R will continue to closely watch this matter and, as the proposed rules proceed through the public comment phase, will share significant developments.

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.