FCC Backs FTC Appeal in 9th Circuit AT&T Case, Seeks to Restore Interagency Balance
The FCC urged the full 9th U.S. Circuit Court of Appeals to affirm a district court ruling that sided with the FTC in finding AT&T Mobility inadequately informed customers of its data-throttling program. The FCC was backing an FTC en…
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banc appeal of a three-judge 9th Circuit decision that threw out its case against AT&T. The FCC said the two agencies "have worked cooperatively" to ensure the division of authority between them didn't subject parties to conflicting agency demands or create a regulatory gap. The panel decision overturning the district court ruling "gravely upset this careful balance, potentially creating a regulatory no man's land that is exempt from both FTC and FCC jurisdiction," said an FCC amicus brief Wednesday in AT&T Mobility v. FTC, No. 15-16585. The FTC has certain authority ("Section 5") to address unfair or deceptive acts or practices affecting commerce, subject to certain exceptions, including for Communications Act "common carriers." FCC 2015 reclassification of broadband as being under Title II common-carrier regulation effectively exempted broadband providers from the FTC jurisdiction. The brief noted the FCC's proposal to undo the Title II broadband reclassification, but said that wouldn't resolve the 9th Circuit issue because the panel ruling extended the FTC's exemption to the non-common carrier activities of common carriers, and AT&T would retain common-carrier status as a telco. "If the en banc Court were to adopt AT&T’s position that the FTC Act’s common-carrier exception is 'status-based' rather than 'activity-based,' contrary to the reasoned analysis of the district court below, the fact that AT&T provides traditional common-carrier voice telephone service could potentially immunize the company from any FTC oversight of its non-common-carrier offerings, even when the FCC lacks authority over those offerings -- creating a potentially substantial regulatory gap where neither the FTC nor the FCC has regulatory authority," said the FCC brief. "That approach is contrary to a common-sense reading of the relevant statutes and could weaken or eliminate important consumer protections. While AT&T may prefer to offer services in a regulatory no man’s land, the law does not dance to AT&T’s whims." En banc reversal is seen as a potential game changer for both agencies (see 1705100063).