Among the new rules set to take effect for broadband Internet access service (“BIAS”) providers when the Open Internet Order takes effect on June 12 are customer privacy protections under Section 222 to the Communications Act.  While the Commission decided not to apply its existing regulations implementing Section 222, Section 222 requires telecommunications carriers, now including BIAS providers, to protect the confidentiality of customers’ proprietary information, and the Commission intends to enforce this requirement according to the Open Internet Order.

On May 20, the FCC’s Enforcement Bureau provided some guidance on how it will apply Section 222 to BIAS providers.  As our firm has noted, recently, the Commission has interpreted its authority under Section 222 expansively, and the Enforcement Bureau’s guidance with respect to the application of Section 222 to BIAS providers suggests the Commission will continue to take a broad approach to interpreting its authority under Section 222.

In its guidance, the Enforcement Bureau says it will not focus on technical details in applying Section 222 to a BIAS provider; rather, the Bureau says it expects a BIAS provider to “take reasonable, good-faith steps to comply with Section 222.”  Unfortunately, this guidance provides little concrete assistance to a provider trying to craft Section 222 compliant privacy policies.

The Enforcement Bureau did add that a BIAS provider should “employ effective privacy protections in line with [its] privacy policies and core tenets of basic privacy protections.”  Ensuring treatment of customer proprietary information is consistent with a BIAS provider’s privacy policy will likely be an important aspect of Section 222 compliance going forward.  For example, the Enforcement Bureau cited the failure of two companies to comply with their own privacy policies in proposing a forfeiture for two lifeline providers last year.

Finally, the Open Internet Order provides a mechanism for requesting an advisory opinion from the Commission.  While the Enforcement Bureau repeated that a BIAS provider is not obligated to seek an advisory opinion from the Bureau, the Bureau says “the existence of such a request for guidance will tend to show that a broadband provider is acting in good faith.”  While the advisory opinion process may open a provider up to the scrutiny of the Commission, in some cases, a broadband provider may want to seek guidance to demonstrate its good faith in complying with Section 222.     

If you have any questions regarding the application of Section 222 to a broadband Internet access service provider, please contact Linda McReynolds: lgm@commlawgroup.com – 703-714-1318.