FCC vs. FTC -- a new privacy turf war

The Federal Communications Commission is about to muscle in on the Federal Trade Commission’s privacy turf and the FTC is pushing back. Since the 1999 Geocities case, the Federal Trade Commission has been the nation’s defacto privacy cop, bringing more than 150 privacy and data security cases. But the network neutrality order could make the FCC a much bigger player in privacy enforcement.

When the FCC in February reclassified the Internet as a common carrier service, it expanded Title II’s strict privacy regulations that currently govern telephone services to Internet service providers and mobile providers. A little known provision in FTC law called the common carrier exemption gives the FCC exclusive authority over telephone services. Now that ISPs and mobile providers are common carriers, the FTC could be cut out of a broad swath of privacy enforcement, especially since much of the privacy and data security agita today stems from online and mobile practices. The FTC most recent enforcement actions -- TracFone, AT&T, and T-Mobile -- may be now out of bounds for the FTC, but fair game for the FCC. The only solution for the FTC is for Congress to change the common carrier exemption and the FTC is advocating that course.