Archive for February, 2017

Repealing the FCC’s New Privacy Rules Will Not Leave a Gap in Consumer Protection

The new Congress is reportedly considering repealing the privacy rules that Tom Wheeler’s Federal Communications Commission (FCC) put in place right before the presidential election. Proponents of the new rules are engaged in a furious public-relations campaign, claiming that consumers’ privacy will be violated left and right if the new rules are repealed. Frightening if true.

When it comes to using your data from web browsing and app usage, the Federal Trade Commission (FTC) has been the regulatory cop on the beat. Determined to be relevant in the digital economy, the FCC created its own, radically different set of privacy regulations targeting just Internet Service Providers (ISPs). By requiring an ISP’s customers to give permission for their data to be used, the FCC’s new privacy rules subject ISPs to a different and more restrictive set of regulations than their online advertising rivals.

The difference in the rules—“opt in” rules for ISPs versus “opt out” rules for edge providers—has significant competitive implications in the online advertising market, which is dominated by Google and Facebook. The reason is that consumers typically elect the default choice out of laziness and respect for the status quo. By making it relatively easier for edge providers to access consumers’ data, the FCC has perversely impaired the ability of ISPs to compete for online advertisers.

Not what you’d expect from an FCC Chairman who liked to chant “competition, competition, competition” as his raison d’etre.

Google and its minions are understandably upset that Congress might upend this regulatory arbitrage, and they have come out swinging. A February 20 blog post by the Electronic Frontier Foundation (EFF) in defense of the FCC’s rules begins with a breathtaking subtitle: “Cable and telephone companies are pushing Congress to make it illegal for the federal government to protect online consumer privacy.” The hyperbole doesn’t end there. EFF claims not once but twice that Congress “intends to eviscerate consumer privacy laws.”

Please. Even if the FCC’s new privacy rules are repealed, there are myriad layers of federal and state protection for consumers. None is mentioned in EFF’s blog.

Where to begin? At the federal level, the FCC has authority under section 222 of the Communications Act to prevent privacy abuses by telephone providers. Section 222 was originally designed to prevent traditional telephone companies from giving their wireless subsidiaries an unfair advantage over unaffiliated wireless companies by sharing customer information with them.

Even EFF admits that “Long ago, Congress made privacy a legal right, so that your telephone company was prohibited from using its position as your communications provider to exploit your personal information.” In case there is any doubt of the law’s relevancy in the Internet age, in 2015, the FCC’s Enforcement Bureau issued an advisory that made clear that even in absence of new privacy rules, the FCC will enforce section 222 against broadband providers.

Not content with section 222? Repeal of the FCC’s new privacy rules will not prevent the FCC from establishing a different privacy regime going forward. For example, in the name of regulatory symmetry, the new FCC could replicate the same opt-out standard used by the FTC.

Perhaps anticipating this rejoinder, EFF claims without citation to any case law or precedent that the mechanism being considered by Congress to repeal the FCC’s privacy rules “could possibly bar the FCC from enacting future consumer privacy rules even if they are more industry friendly.” Adding “possibly” after “could” seems redundant, unless there is simply no basis for making such a claim. (I’m anxious to be corrected.)

Moreover, repeal of the FCC’s privacy rules will not prevent Congress from establishing a different privacy regime going forward. To the extent that Congress repeals both the FCC’s 2015 Open Internet Order and its privacy rules, the FTC would be placed firmly back in control of privacy enforcement for ISPs. Before the FCC’s reclassification of ISPs as common carriers in March 2015 took away the FTC’s authority, the FTC was the primary privacy cop on the beat for ISPs. For example, in 2014, the FTC sanctioned AT&T Mobility for its alleged failure to adequately inform its customers of its data-throttling program.

EFF argues that a recent Ninth Circuit decision stripped the FTC of its “authority to penalize cable and telephone companies if they deceive their customers, meaning the FCC is the only broadband consumer protection agency.” But Congress could eliminate the FTC’s common-carrier exception, assuming the GOP majority could convince eight Democratic Senators to overcome the filibuster rule. This would also return privacy enforcement to the FTC.

Moving beyond federal protections, several states add yet another layer of protection against potential privacy abuses by ISPs. For example, Nevada and Minnesota require ISPs to keep private certain information concerning their customers, unless the customer gives permission to disclose the information. And under California law, non-financial businesses, including ISPs, are required to disclose to customers, in writing or by electronic mail, the types of personal information sold to a third party for direct marketing purposes.

If and when the FCC’s new privacy rules are overruled, the statute that empowers the FCC to police privacy abuses by ISPs will still apply. And nothing prevents the FCC from designing a different (and more symmetric) regulatory standard. Repeal of the FCC’s new rules will simply restore the regulatory environment that existed for more than 18 months between the FCC’s reclassification decision and its privacy rules. Given the myriad layers of protections and regulatory options, the notion that repeal would leave the ISPs without any privacy regulator is patently false.

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Tracing AT&T’s Capital Expenditures Over Time

When it comes to broadband investment, AT&T is the largest Internet service provider (ISP) in the United States. So when AT&T redirects capital expenditures (capex) away from its domestic broadband operations, the whole ISP segment moves with it. This is key because policymakers are trying to figure out what happened to ISP capex since the FCC reclassified ISPs as common carriers in February 2015.

Try as Tom Wheeler might to obfuscate the facts, the relevant benchmark for comparison is 2014–the last full year in which ISPs were not subjected to common carrier regulations. In his farewell speech, Wheeler intimated that 2013 (his first year as Chairman) was the benchmark year against which any such comparisons should be made. Convenient, but wrong, as 2014 is a better predictor (relative to 2013) of 2015 and 2016 ISP investment in a world absent reclassification.

If you look at the top-line capex figures from AT&T from 2014 through 2016, it appears that capex increased (albeit slightly) from 2014 to 2016: $21.2 billion in 2014, $19.2 billion in 2015, and $21.5 billion in 2016. Title II is wonderful, right?

Wrong. There’s a problem in this comparison, and it’s similar to the one that complicates inferences about the impact of Title II on Comcast’s broadband investments. Recall that Comcast acquired NBCU, a content provider, and the deal was approved by regulators in early 2011. Fortunately, Comcast breaks out its annual capex relating to NBCU from its capex in infrastructure in its annual reports.

In the middle of 2015, AT&T acquired DIRECTV and some Mexican cellular properties. Unlike Comcast, however, AT&T does not break out capex related to these investments. To make an apples-to-apples comparison of AT&T domestic broadband capex from 2014-16, one must back out AT&T’s capex in satellite and in Mexico in 2015 and 2016. In particular, one must back out a half year of those investments in 2015, and a full year in 2016. The approximate annual capex over the last few years were $3 billion for DIRECTV and $750 million for its Mexico operations (equal to $3 billion spread over four years).

Accordingly, the best estimate for AT&T’s domestic broadband capex in 2015 is $19.2 billion (the top-line figure reported in its annual report) less $375 million in Mexico less $1.5 billion in DIRECTV, or $17.3 billion. And the best estimate for AT&T’s domestic broadband capex in 2016 is $21.5 billion (the top-line figure reported in its annual report) less $750 million in Mexico less $3.0 billion in DIRECTV, or $17.8 billion.

Relative to 2014, AT&T’s domestic broadband capex in 2015 declined by 18.2 percent ($17.3 billion versus $21.2 billion). And again relative to 2014, AT&T domestic broadband capex in 2016 declined by 16.2 percent ($17.8 billion versus $21.2 billion). Put differently, the imposition of Title II is associated with (but did not necessarily cause) an annual reduction of over $3 billion in capital in the broadband sector in each of the last two years. That’s a lot of capital to go missing.

This is not a legacy anyone should be proud of. I’ll be back with my full survey of the top 12 ISPs shortly. Stay tuned.

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Since posting the piece, Alex Byers of Politico asked me via Twitter about the impact of Project VIP on AT&T’s capex, which ended in 2014. It’s true that VIP caused a boost in capex. But AT&T’s guidance to investors in November 2012 was that capex would return to normal, “pre-VIP levels.” AT&T’s average capex from 2010-12 was $20.5 billion, which vastly exceeds the $17.3 to $17.8 billion range estimated above.

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