"For a long time, I have suggested that it is time for all regulation relating to privacy protections accorded by Internet service providers to be subject to the FTC's privacy regime. Given the FTC's experience and expertise and general privacy jurisdiction, there is no reason for various providers of Internet services and applications, regardless of how they are classified under the archaic telecom regime, to be subject to varying requirements. Especially at a time when government, across-the-board, ought to be looking to eliminate duplicative regulatory functions, FCC privacy regulation of Internet providers doesn't make sense.

 

Nevertheless, it looks like FCC Chairman Tom Wheeler is determined to use the expansion of the FCC's power resulting from the agency's Open Internet order classification of broadband Internet providers as common carriers to adopt new, more burdensome privacy regulations. I hope the courts ultimately hold that the FCC's Internet power grab is unlawful. But, in the meantime, I certainly agree with the position of all of the major associations representing all stripes of broadband Internet providers that any new regulations adopted by the Commission should be as consistent as possible with the FTC's framework. (See the industry letter dated February 11.) I see no reason, in today's Internet environment, why certain online services and applications, which are not differentiated in any meaningful sense from a consumer's perspective, should be subject to more or less privacy regulation.

 

I know Ralph Waldo Emerson's saying that, in some instances, "foolish consistency is the hobgoblin of little minds." But with respect to Mr. Wheeler's proposal, inconsistency in the FCC and FTC regulatory regimes would be a foolish waste of government resources that would result in inequities among market participants - and all without countervailing consumer benefits."