As the clock ticks down to President-elect Trump’s Jan. 20 inauguration, the future of regulatory agencies like the Federal Communications Commission is uncertain. But one thing is clear: Enforcement will continue.
“The overwhelming majority of the work we do is bipartisan,” Travis LeBlanc, the FCC’s enforcement bureau chief, said last week at an International Association of Privacy Professionals event in Washington, DC.
But the commission, an independent entity subject to congressional oversight, is inherently divided along party lines. The FCC chairman is a political appointee.
Late last week, the FCC entered a 2-2 deadlock when the Senate failed to reconfirm Democratic FCC Commissioner Jessica Rosenworcel for a second term on the commission, leaving the door open for a Republican majority come January.
With Chairman Tom Wheeler, an Obama appointee, at the helm, the FCC reclassified broadband as a utility, enacted rules to protect net neutrality, made overtures to unlock the set-top box and passed sweeping privacy regulations.
Although in Trump’s FCC that legacy will be in jeopardy, the commission’s enforcement bureau under LeBlanc, who served as special assistant attorney general of California prior to joining the FCC, has gained a rep over the last three years as a consumer-centric body.
Since his appointment by Wheeler in 2014, LeBlanc, in collaboration with other federal agencies, raked in $365 million in fines, refunds and settlements during his first year in office alone.
“I’m very vocal and very committed to ensuring every day that the enforcement bureau focuses on consumer protection,” LeBlanc told AdExchanger. “It’s not an easy job.”
Whether he’ll still have that job come January is unlikely. Until then, he’s staying busy.
At any given time, the FCC has around 500 active cases. Every month, roughly 40 new cases come in the door and another 40 are adjudicated or settled. LeBlanc is usually working on at least 15 cases a day, from different states and in different stages of finalization. LeBlanc also oversees 24 field offices across the country.
AdExchanger caught up with LeBlanc in Washington, DC, to talk tech, Trump, tracking and telcos.
AdExchanger: An entity like Verizon is a telco, a content provider and now an ad tech aspirant. Platform companies fall under a lot of regulatory umbrellas. Who do they answer to?
TRAVIS LEBLANC: My response will not be particular to Verizon, but we’re seeing a lot of convergence of industries with the adoption of the internet. For many people, a traditional phone company is also their cable provider, television provider, paid-TV services provider, their internet service provider (ISP), maybe even their mobile phone provider.
When you have the convergence of historically regulated industries, there’s going to be some regulatory convergence as well. The good thing about having a federal system in the United States is that almost all of our companies are used to dealing with both federal and state governments.
There are a number of government actors, at both the federal and state levels, that may have jurisdiction over an entity. What’s important is that we have some amount of harmonization across the regulatory spectrum, so that the industry is not getting conflicting guidance from agencies.
What does Trump’s presidency mean for the FCC’s recently passed privacy rules?
I can’t answer that. The rules are on the books. They were published in the Federal Register [in early December]. It will be up to the next commission or Congress to determine whether they should be changed.
What are people misunderstanding about the FCC’s focus on ISPs as opposed to edge providers like Google? The FCC doesn’t have jurisdiction, but that doesn’t mean the edge providers don’t have access to a lot of user information.
The majority of the commission took the view that the position of ISPs in the ecosystem is different enough from edge providers to warrant having specific rules on the books governing the collection, use, sharing and notice around data.
Walmart knows what I do when I visit Walmart’s website, but when I’m on CNN’s website, Walmart probably doesn’t know. But my ISP sees all of that. And if it’s a mobile provider, they have access to my location, pretty much 24/7, if you assume that these are devices we have on us at all times.
While the quantity of the data may be different, the access that an ISP has is fundamentally different from that of an edge provider.
You’ve said in the past that “privacy and innovation are not incompatible.” Can you expand on that?
Oftentimes, people think that the two have to be at odds, but it’s a false choice to say that you can either have innovation or you can have privacy. You can have both.
Privacy by design means that the fundamental principles of privacy protection are already built into the innovation. The mobile ecosystem, the internet, has developed to show that there are ways to notify consumers, to allow them to make choices about the data they share and the retention of that data. We’ve seen a thriving digital ecosystem evolve from that.
The telcos are getting acquisitive. There’s Telenor and Tapad, Verizon/AOL and Yahoo and Singtel and Amobee back in 2012. How much are those moves on your radar?
Earlier this year we did a case that shows we pay attention to that area, the settlement with Verizon in March over the use of its so-called supercookies. We were clearly aware that Verizon wanted to use these unique identifier headers (UIDH) to track their users’ traffic. They did this initially without informing any user that they were doing it. Unlike a normal cookie which you can delete, the UIDH is actually in the header. You can’t delete it. In fact, you probably wouldn’t even recognize it was there.
We entered a settlement with them that required they notify their users of the UIDH program and to make the program opt-in for sharing outside of Verizon. When we approach privacy protection, so often the issue we’re dealing with is about notice and choice. At the end of the day, we want to empower the consumer to make a decision about their personal data.
You’ve occupied the chief enforcer seat at the FCC for three years. Do you get to occupy it in the new administration?
The FCC is an independent agency. I serve at the pleasure of the Commission, but I’m appointed by the chairman. I was appointed by Chairman Wheeler. I can serve with relative certainty for so long as Chairman Wheeler is the chairman of the FCC. But after that, all bets are off.
