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FCC and FTC privacy turf war goes public

The turf war between the Federal Communications Commission and the Federal Trade Commission over which agency should have primacy in protecting consumer privacy has spilled over into the pages of the Wall Street Journal.

Before today’s column, penned by Republican FCC commissioner Mike O’Rielly and Republican FTC commissioner Maureen Ohlhausen,  the signs of the brewing battle were limited to the occasional snippet of Congressional testimony or paragraph in a speech before industry associations.

In the op-ed, Ohlhausen and O’Rielly warn that the impending collision between the agencies “could disrupt the country’s thriving Internet providers and businesses, with little or no added benefit for consumers.”

Before the FCC passed the open Internet order in a party-line vote reclassifying Internet service providers as common carriers, the FTC was considered the de-facto privacy cop in Washington. But because of a law that prohibits the FTC from policing common carriers, the FCC’s move pushes aside the FTC from enforcing the kinds of privacy cases it has already brought against online and mobile practices.

“One cop on the beat is being shoved aside by another that is less savvy and knowledgeable about the current Internet marketplace and related privacy and security issues. As time passes, Internet-related companies will face new uncertainty as the FTC’s body of precedent is replaced with the FCC’s to-be-determined role,” the Republican commissioners wrote.

The op-ed goes on to praise the FTC’s track record in enforcing consumer privacy rights at Internet companies.

“The FTC has addressed a wide range of Internet issues, including spam and spyware, social networking, behavioral advertising, peer-to-peer file sharing, mobile apps and more. The agency has brought more than 130 spam and spyware cases and 51 general privacy lawsuits, several against well-known Internet edge providers for violating their privacy promises.,” the commissioners wrote.

FCC chairman Tom Wheeler himself is aware of the conflict, but didn’t see a problem.

“The FTC ACT says [the FTC] doesn’t have jurisdiction over common carriers. So when we said ISPs were common carriers, it triggered that. We work closely with the FTC. Whatever we do, which will be forthcoming in next few months, we’ll do our best to harmonize, so there will be common concepts,” Wheeler said during a recent hearing before the House communications and technology.

How that will specifically play out depends on how far the FCC goes in defining and crafting new regulations around customer proprietary network information or CPNI, a Title II statute that the agency adopted with its order.

Wheeler also told the subcommittee that the FCC didn’t “intend” to extend new privacy regulations to edge providers, like Google, Sling TV, or Facebook. But that hasn’t stopped consumer privacy groups from pressing the agency to consider taking a broader interpretation.