308.We also believe that our proposals find support in a number of other statutory provisions, which provide authority to protect against unjust, unreasonable, and unreasonably discriminatory practices; interception or divulgence of communications; and the untimely deployment of advanced telecommunications services. An additional source of authority includes our particular authority over wireless licensees.
309.In the 2015 Open Internet Order, we interpreted Sections 201 and 202 in the broadband Internet access services context through our adoption of the “no-unreasonable interference/disadvantage” standard. That standard, which is codified in our rules at Section 8.11, “is specifically designed to protect against harms to the open nature of the Internet.” Of particular relevance for the proceeding initiated by this Notice, we found that “practices that fail to protect the confidentiality of end users’ proprietary information, will be unlawful if they unreasonably interfere with or disadvantage end user consumers’ ability to select, access or use broadband services, applications, or content.” NOTEREF _Ref445303279 Against that backdrop, we seek comment on how our interpretation of Sections 201 and 202 in the broadband Internet access services context should inform rules adopted in this proceeding to address consumer privacy and security.
310.We also note that Section 5 of the Federal Trade Commission Act declares that unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce are unlawful. NOTEREF _Ref445303279 There is a distinct congruence between practices that are unfair or deceptive and many practices that are unjust, unreasonable, or unreasonably discriminatory. Indeed, both Commissions have found that Section 201 of the Communications Act and Section 5 of the FTC Act can be read as prohibiting the same types of acts or practices, NOTEREF _Ref445303279 and the FTC has a rich body of precedent, in enforcement actions and consent orders, that measures privacy and data-security practices against the unfair-or-deceptive standard. Although the FTC lacks statutory authority to prevent common carriers from using such unfair or deceptive acts or practices, NOTEREF _Ref445303279 we seek comment on the extent to which Section 5 of the FTC Act and the FTC’s precedents may inform our consideration of whether practices by common carriers are unjust or unreasonable.
1.Section 705 of the Communications Act
311.Section 705 of the Communications Act has been in place since the adoption of the Communications Act in 1934. NOTEREF _Ref445303279 Section 705(a) establishes that providers of communications services by wire and radio have obligations not to “divulge or publish the existence, contents, substance, purport, effect, or meaning” of communications that they carry on behalf of others. NOTEREF _Ref445303279 We believe that Section 705 can thus provide a source of authority for rules protecting the privacy of customer information, including the content of their communications. Do commenters agree? To what extent do Section 705, as well as provisions of Title 18 of the United States Code, currently limit the practices of BIAS providers? To what extent might it be necessary for the Commission to use its authority to interpret and implement Section 705 to protect subscribers to BIAS services?
1.Section 706 of the Telecommunications Act of 1996
312.Section 706(a) of the Telecommunications Act of 1996 directs the Commission to take actions that “shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” NOTEREF _Ref445303279 To do so, the Commission may utilize, “in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.” NOTEREF _Ref445303279 In addition, Section 706(b) provides that the Commission “shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market,” if it finds after inquiry that advanced telecommunications capability is not being deployed to all Americans in a reasonable and timely fashion. NOTEREF _Ref445303279 In Verizon v. FCC, NOTEREF _Ref445303279 the D.C. Circuit upheld the Commission’s transparency rule as authorized pursuant to Section 706. NOTEREF _Ref445303279 In doing so, it upheld the Commission’s judgment that Section 706 constitutes an independent source of affirmative statutory authority to regulate BIAS providers. NOTEREF _Ref445303279 The Commission reaffirmed that view in the 2015 Open Internet Order. NOTEREF _Ref445303279
313.We believe that rules governing the privacy and security practices of BIAS providers, such as those discussed in this Notice, would be independently supported by Section 706. We also believe that the proposed transparency, choice, and security requirements further align with the virtuous cycle of Section 706, since they have the potential to increase customer confidence in BIAS providers’ practices, thereby boosting confidence in and therefore use of broadband services, which encourages the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans. We seek comment on this analysis.
1.Title III of the Communications Act
314.Section 303(b) of the Act directs the Commission to, “as public convenience, interest, or necessity requires,” “[p]rescribe the nature of the service to be rendered by each class of licensed stations and each station within any class.” NOTEREF _Ref445303279 Section 303(r), furthermore, directs the Commission to make rules and regulations, and prescribe restrictions and conditions, to carry out the Act. NOTEREF _Ref445303279 In addition, Section 316 authorizes the Commission to adopt new conditions on existing licenses if it determines that such action “will promote the public interest, convenience, and necessity.” NOTEREF _Ref445303279 To the extent that BIAS is provided by licensed entities providing mobile BIAS, these provisions would appear to support adoption of rules such as those we consider in this proceeding. NOTEREF _Ref445303279 We seek comment on this conclusion.