• by Wendy Davis , Staff Writer @wendyndavis, April 25, 2016

Cable companies and other critics of the Federal Communications Commission's proposal to "unlock" set-top boxes have spent the last two months arguing that the plan poses a risk to consumers' privacy.

The proposal would enable Google and other non-cable companies to develop boxes that can access pay-TV programs. Google supports the plan, as do consumer groups and the White House.

But cable providers and other critics contend that the FCC won't be able to force Google -- and other device and app developers -- to follow rules aimed at protecting consumers' privacy. The FCC counters that it will require Google and others to certify that they comply with similar privacy rules as cable and satellite providers.

Now, the Federal Trade Commission is weighing in. FTC Consumer Protection head Jessica Rich says in a letter to the FCC that it's not enough for app and device makers to "certify" their compliance via behind-the-scenes contracts. Instead, Google and other companies should publicly promise to follow the same privacy standards as cable and satellite providers, Rich argues.

That way, she says, the FTC will be able to bring enforcement actions against companies that engage in questionable privacy practices.

"The FTC’s ability to enforce promises made by these entities serves as an important backstop to ensure that they are abiding by the required consumer privacy protections," Rich writes.

She adds that the agency's authority to sue companies for deceiving consumers is "clearly implicated" by public certifications. "Examples of enforceable statements to consumers could include statements within privacy policies, on other portions of a consumer-facing website, on a retail box, on the device itself, or in the user interface of the device."

Rich notes that the FTC previously brought high-profile privacy cases against Google, Facebook, and Snapchat, among other Web companies.

Although the FTC can't generally fine companies that violate privacy promises, the agency can enter into settlement agreements. If companies violate the settlement terms, the FTC can impose sanctions. In fact, Google -- which has made no secret of its ambitions to develop set-top boxes -- is operating under a consent decree that subjects it to sanctions for violating privacy promises made to consumers. Several years ago, the FTC fined Google $22.5 million for circumventing Safari's default settings in order to track consumers, despite saying in its privacy policy that the Safari browser blocks tracking cookies.

Proponents of the FCC's plan to unlock the box point out that it could enable consumers to purchase boxes -- which they currently rent for a collective $20 billion a year. The plan also would make it easier for consumers to watch TV on tablets and smartphones, and access over-the-top content from the same device used to watch TV programs.

A coalition of advocacy groups argues that the FCC's proposal may actually strengthen consumers' privacy rights. "A competitive market will allow consumers to choose between different providers, in part based on their different privacy policies," the Consumer Video Choice Coalition writes in papers submitted to the FCC Friday.

"A competitive market will present consumers with a variety of different choices, some of which may have stricter controls on the collection and use of viewing data, than ... customers have access to now."