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WASHINGTON -- Phone companies now can share a consumer's private information with certain affiliates without first getting that customer's consent, a new Federal Communications Commission ruling says.

Details of who customers call, when they call, and how long they talk may be shared with communications-related corporate affiliates, the ruling says. Customers can choose to keep such information private, but must initiate the request. The carrier does not have to ask permission.

When it comes to sharing customer data with unaffiliated third parties, the default is reversed under the FCC's new rule. Telecom companies must get the consumers' express consent to "opt in," the FCC says.

The decision, announced Tuesday by a somewhat divided FCC, has roiled privacy advocates who say data could be used for consumer profiling by companies with only weak links to the phone carriers.

Pros and Cons

"Everyone should understand that this decision is neither narrow or pro-privacy," says FCC Commissioner Michael Copps, who dissented in part with the decision over privacy concerns.

The unclear definition of "corporate affiliates" that can access customer data invites abuse, Copps says. Consumers might find their phone companies "selling to the highest bidder personal and detailed information...as long as these companies use it for some 'communications-related' purpose and have some undefined murky affiliation," he says.

Privacy advocates expressed similar concerns.

"Corporate families are pretty big. I don't know [that] customers feel as familial about the relationship as corporations," says Mikal Condon, staff counsel at the Electronic Privacy Information Center.

Condon also says the rule will confuse consumers, because it applies different standards to the various third parties seeking customer information.

Others see the ruling in a more positive light.

Consumers like sharing certain information, counters Mark Uncapher, senior vice president and counsel for the trade group Information Technology Association of America. Uncapher calls the decision a positive step. He likens it to customers being willing for Amazon.com to know which books they have purchased, and recommending others.

"The telecommunications industry has been under a fairly strict privacy regime," Uncapher says. "This is an improvement."

Familiar Fight

This battle is an old one, with a series of changing decisions along the way. The FCC originally required companies to obtain consumer's consent before releasing private information to anyone. However, that ruling was overturned in 1999 when a federal appeals court said the commission did not have enough evidence to justify the rule's infringement on corporate speech.

"We've argued pretty vehemently that the networks have misused proprietary consumer information to win back customers," says Jonathan Askin, general counsel for the Association for Local Telecommunications Services.

The FCC was forced to carve a compromise that passed judicial scrutiny and balanced corporate and consumer interests, commissioners noted.

"Despite the laudable efforts of the parties to generate such an empirical record, not to mention our own efforts, no more persuasive evidence emerged that would satisfy the high constitutional bar set by the court," says FCC Chairman Michael Powell. He adds that states can set their own requirements.

However, Condon says the court ruling will likely be used as precedent in the states, discouraging any change from the FCC's new rule. States are "pretty much guaranteed litigation" if they require consumer consent, she says.

Legislation introduced by Senator Paul Wellstone (D-Minnesota) would require consumer consent in all cases. However, the measure, Senate Bill 1928, but it does appear to have enough support to pass, Condon says.

As a related matter, the FCC is currently seeking industry comment on the use of information about customers whose telecommunications carriers have gone out of business or have filed for bankruptcy protection.

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