D.C. Circuit Upholds FCC Opt-In Rule for CPNI Sharing
Requiring opt-in customer consent before a carrier shares information with outsiders doesn’t violate carriers’ First Amendment rights or the Administrative Procedure Act, the U.S. Court of Appeals, District of Columbia Circuit, ruled Friday. It rejected the NCTA’s challenge to a 2007 FCC order on customer proprietary network information. “There is nothing” to the NCTA’s argument that “the administrative record does not support the Commission’s Order,” the court said. Judge Raymond Randolph wrote the decision, which was supported by Judith Rogers and David Tatel.
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Protecting CPNI is a “substantial government interest,” the court said, disagreeing with the 10th Circuit’s view in 1999’s US West v. FCC. “We do not agree that the interest in protecting customer privacy is confined to preventing embarrassment as the Tenth Circuit thought,” it said. “There is a good deal more to privacy than that. It is widely accepted that privacy deals with determining for oneself when, how and to whom personal information will be disclosed to others.”
Acting FCC Chairman Michael Copps lauded the order. “Telephone carriers today handle vast amounts of their customers’ personal information, and in light of documented abuses of consumers’ privacy, the Commission appropriately required carriers to institute additional safeguards to protect customers’ personal information,” he said. The FCC “will continue to be vigilant to ensure that [consumers'] privacy is protected.”
In choosing opt-in over opt-out, the FCC carefully considered the differences, and the evidence supports the commission’s decision, the court said. The commission didn’t need evidence that a third party was improperly sharing CPNI it got from a carrier. “This argument, by focusing on what happens after a joint venturer or independent contractor receives the information, performs a sort of sleight of hand,” the court said. “It diverts attention from the fact that the carrier’s sharing of customer information with a joint venturer or an independent contractor without the customer’s consent is itself an invasion of the customer’s privacy.”
The NCTA tripped up by failing to argue that the FCC misinterpreted federal law or that the law is unconstitutional, the court said. The FCC order carried out section 222 of the Communications Act. “By conceding the constitutionality of [section] 222, petitioners necessarily concede at least two factual predicates underlying both the statute and the Commission’s Order -- namely, that the government has a substantial interest in protecting the privacy of customer information and that requiring customer approval advances that interest.”
This was the court’s second ruling in four days siding with the commission (CD Feb 11 p2). The NCTA was “disappointed” in Friday’s decision, a spokeswoman for the cable association said.