On April 24th, the Electronic Privacy Information Center (“EPIC”) and a coalition of 37 other civil society groups sent a letter urging the Federal Communications Commission (“FCC”) to act on an August 2015 petition to repeal the FCC’s data retention mandate under 47 C.F.R. §42.6 (“Retention of Telephone Toll Records”).

The mandate requires communications carriers that “offer[] or bill[] toll telephone service” to retain the following customer billing records for a period of 18 months: (1) the “name, address, and telephone number of the caller,” (2) the “telephone number called,” and (3) the “date, time, and length of the call.”  Carriers are required to retain such information regardless of whether they are billing their own toll service customers or billing customers for another carrier.

Citing a new executive order that calls for the identification of “outdated, unnecessary, or ineffective” regulations that “impose costs that exceed benefits,” the coalition argued that the data retention requirement creates an unnecessary regulatory burden for carriers by relying on an outdated method of billing telephone customers.  Rather than billing per phone call, the group argued, carriers today largely favor bundled or flat-rate service plans.  According to the group, the mandate’s reliance on the outdated billing model “increases costs,” “stifles innovation,” and “inhibits market competition” by preventing carriers from competing on privacy.

In that vein, the coalition also maintained that the regulation infringes on the right to privacy by requiring carriers to maintain sensitive records of millions of Americans without any suspicion of wrongdoing.  Moreover, the group argued, requiring carriers to retain customer data increases the risk that such data will be exposed to a security breach, such as the breach reported in November 2015 that resulted in 70 million prisoner call records being leaked to The Intercept.

The group opined that the data retention mandate is neither necessary nor effective, and that it is therefore time to ask the public to comment on whether the mandate should continue.

Next Steps

The coalition urged the Commission to docket their petition and issue a Public Notice for comment by May 8, 2017, in keeping with the Commission’s obligation to “promptly” respond to qualifying petitions for rulemaking.  FCC Commissioners have yet to comment on whether they will adhere to the coalition’s requested timeframe, but a recent blog post by Commissioner O’Rielly (which was cited in the coalition’s letter) suggests that the FCC is gearing up to examine ways to eliminate unnecessary regulatory burdens on the communications industry.