FCC now regulates ISPs – but don't take your complaints to the watchdog just yet

'We know what we're doing'

Net neutrality Tom Wheeler, chairman of America's broadband watchdog the FCC, has insisted that "we know what we're doing," as his regulator gobbles up more and more power.

This is despite him acknowledging that the FCC isn't sure how far its authority stretches – and that it doesn't have crucial rules and guidelines in place.

At a congressional hearing on Tuesday morning, Wheeler was joined by fellow FCC commissioner Ajit Pai to answer a broad range of questions over the watchdog's recent decisions. Key among them was the impact of the net neutrality rules passed in February.

When the FCC reclassified ISPs as telecom carriers, it ended up pulling jurisdiction for them away from the normal consumer-protection regulator, the Federal Trade Commission (FTC), to itself.

That means broadband subscribers or companies who wish to complain about their ISP will now have to go to FCC rather than the FTC. But the FCC has virtually no experience in handling that broad range of internet gripes, nor does it have any rules or even guidelines into how to handle such complaints.

What's more, it is uncertain whether or not the FCC has jurisdiction over "edge providers," such as Google or Apple.

Youtube video of the hearing

And what about privacy? For example, how will the regulator deal with complaints about an ISP's handling of its subscribers' privacy? Wheeler said the commission has rules on the protection of "customer proprietary network information" (CPNI), and used these rules to fine AT&T $25m for a privacy scandal in April this year.

"The [FCC] has for decades dealt with privacy issues through the CPNI rules," Wheeler told the House Energy and Commerce Committee. "It's not as if we fell into this patch."

Commissioner Pai disagreed. The FCC only deals with a "narrow and arcane" set of privacy rules, he said, and so when it comes to much broader and more complex issue around ISPs, "we don't have any rules and the guidance is completely unhelpful."

Pai then read out the FCC guidance on privacy, and noted: "I don't know what that means. ISPs have no idea, consumers have no idea." Congressman Pete Olson (R-TX) who asked the question also responded: "And I have no idea."

The CPNI rules cover the records kept by telephone companies on the numbers you call and services you use, such as voicemail. But that is a world away from the internet and all the possible online services and packages that people could complain about to the commission.

As a result, the FCC is still working on rules to cover its new authority; rules that Wheeler said will come "in the next few months." In developing those rules, he noted, "we will work closely with the FTC, and we will do our best to harmonize and create a common set of concepts."

Pai felt the approach was wrong, and said he would much rather "let the experts handle this" and have the FTC assume the role. Currently, the FTC is explicitly limited under the law from assuming any authority over telecoms carriers.

As to the second issue over whether the FCC now also has authority over "edge providers", Wheeler said that "it is not our intention" to extend its jurisdiction over them.

However, the FCC is again working on documents that will help clarify the situation, and Pai argued that it was an easy stretch to see how if the FCC was taken to be in charge of telecoms providers, they could also be pulled into deciding edge-provider cases since they are reliant on ISPs to reach consumers. "It's not clear why the FCC should limit its focus to just ISPs," Pai argued. ®

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