Agencies Say They Work Collaboratively on Consumer Issues
Officials at the FCC, FTC and Consumer Financial Protection Bureau (CFPB) as well as state attorneys general work collaboratively all the time, officials from the agencies said Monday night during an FCBA event. The FTC collaborates with the FCC on telemarketing enforcement, and worked with the agency and state AGs on a recent AT&T cramming case, which resulted in $80 million going back to consumers, said FCC Enforcement Bureau Associate Chief Eric Bash. The FCC, FTC and state AGs worked together on a case involving T-Mobile that will result in a minimum of $67.5 million going back to consumers, Bash said. But some counsel representing industry didn’t think agency collaboration is always beneficial. Having multiple agencies oversee a company’s activities creates an “uneven playing field,” because not all companies are regulated by more than one agency, said Michelle Rosenthal, T-Mobile corporate counsel.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
It’s invigorating to work with other federal and state authorities, said CFPB Deputy General Counsel To-Quyen Truong: “States have been a great resource.” She said the CFPB has had a “fruitful collaboration” with the FTC. The CFPB meets at least quarterly with other agencies including the FCC and FTC to discuss enforcement cases, Truong said. The FTC renewed its memorandum of understanding (MOU) with the CFPB last week (see 1503120037), said Neil Chilson, aide to FTC Commissioner Maureen Ohlhausen.
Cramming settlements reflect the cooperation among the FTC, FCC and state AGs, Bash said. The FTC and FCC have an MOU on telemarketing issues and meet formally every few months to exchange information, he said. Since the FTC is so engaged in privacy and data security, officials from the FTC and FCC have a monthly call to exchange information, even without an MOU on those topics, Bash said. An absence of an MOU in a particular area doesn't mean agencies don’t collaborate where necessary, Bash said, pointing to cramming cases. The FCC also has a formal agreement to share information with CFPB, he said, but “as I’m sure you would envision, cooperation comes up on an ad hoc basis,” he said. Calls are scheduled to exchange relevant information between agencies, but that doesn’t mean calls also can’t be made daily if needed for the agencies to collaborate effectively, he said.
Since not every company is overseen by multiple agencies, agency collaboration creates an uneven playing field that's not great for competition and doesn’t benefit consumers, T-Mobile's Rosenthal said. When multiple agencies are involved, there's potential for “inconsistent or conflicting guidance from various agencies,” she said. Jurisdiction is in the eye of the beholder, said Wiley Rein attorney Mark Sweet, who represents clients facing government investigations. Even without inconsistencies in what the agencies advise, priorities differ, Rosenthal said.
Ohlhausen has some concerns about FTC ability to enforce Section 5 of the FTC Act and other laws because the FCC is reclassifying ISPs as common carriers, Chilson said. Reclassification “does make enforcement more challenging” for the FTC in some instances in which lawyers could plead a company falls under the common-carrier classification, Chilson said. “It’s another legal argument staff will have to deal with.”
The FCC shares information that may be of interest to the FTC or the CFPB, and vice versa, Bash said. Consumers benefit from the expertise of the right agency, said Chilson. The FTC has a “robust consumer complaint database” that the FCC can access, Bash said. FTC officials can access the FCC’s database as well, he said. An agency may decide to proceed independently on a case or ask to collaborate with another agency to ensure consumers are protected, he said. The extent of an agency's involvement depends on the case, Truong said.
The focus of an agency’s energy depends on the philosophy of the chair and bureau chiefs, said Squire Patton attorney Monica Desai, who advises clients from the technology and communications sectors. If the FCC determines a rule isn't having the desired effect, the agency could pursue a rule change or broaden the interpretation of the rule, she said. It can be advantageous working with multiple agencies on the same set of events as there is more diversity in thought and approach, Desai said.