US ad trade associations file petition against FCC, stating it is in violation of the First Amendment

Federal Communications Commission

Several major US ad trade associations jointly submitted a petition to the Federal Communications Commission (FCC) on Tuesday evening (3 January) to reconsider its order mandating opt-in privacy requirements by Internet service providers.

The petition – which was submitted together by the Association of National Advertisers, the American Association of Advertising Agencies, the American Advertising Federation, the Data and Marketing Association, the Interactive Advertising Bureau, and the Network Advertising Initiative – has contended that the FCC’s order “imposes sweeping and onerous requirements” for utilizing data on consumer Internet and digital media usage and “violates First Amendment protections of commercial speech."

"The creation, analysis, and transfer of consumer data for marketing purposes constitutes speech," the groups claim in the petition, adding: "The prohibition against the use of... all web viewing history and app usage information, without opt-in consent, unlawfully restrains and unreasonably burdens the ability of [broadband] providers to engage in broad ranges of protected speech," the ad groups argue in an earlier report.

The ad groups also claim that the FCC order is unnecessary, because the industry has already implemented its own privacy self-regulatory programs providing “necessary consumer transparency, notice and choice for interest-based advertising.”

The Trade Association (as the groups are referred to in the petition) states that in a data-driven marketplace that subsidizes the online ecosystem, content, programming, promoting innovation and growing the economy the ad bodies feel that the FCC rule "would seriously undermine many of these benefits."

They continue: "The Trade Association further states that in an industry that generates 966,000 jobs, and adds $202bn in revenue to the US economy, the FCC acted in an arbitrary and capricious manner inconsistent with Congressional intent."

The Trade Association also accuses the FCC of failing to consider far less restrictive proposals in the process of adopting their more stringent rules and that the FCC did not give any interested parties enough time to respond.

The FCC hasn't indicated how it will act on the new petitions for reconsideration. But the rules faced an uncertain future even before the trade groups asked the agency to revisit the regulations, given that the two Republicans on the FCC said last month that they aim to repeal the net neutrality and privacy rules.

"This overreach by the FCC would result in consumers having to opt out repeatedly throughout the day as they browse the web or be overloaded with a constant drumbeat of opt-in choices. In either case, this will have severe negative impacts for the on-line and mobile experience, resulting in harm to consumers and threatening the financial underpinnings of the Internet ecosystem,” the ANA wrote in an earlier letter to its members.

“We strongly encourage the FCC as it continues its deliberations to reconsider this proposed definition, to ensure that it is not unduly broad and sweeping, and does not result in serious harms to the consumer experience," it finished.

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Laurie Fullerton

Laurie Fullerton is a writer based in Boston, MA with a background in business, sports, community, medical and travel writing. She has been a newspaper editor in the Boston-area, a sports writer covering yacht racing and a community reporter. She has been reporting for The Drum since October 2015.

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