Updated: May 2017

FTC v. AT&T Mobility

In the fall of 2016, a three-judge panel of the Ninth Circuit held that the Federal Trade Authority (FTC) did not have the authority to pursue AT&T for data throttling because AT&T was in part a "common carrier" under the jurisdiction of the Federal Communications Commission and the FTC Act does not cover common carriers. (Actually, at the relevant time only a very small part of AT&T's business involved "common carrier" activities.) 

Update: The full Ninth Circuit has agreed to rehear the Federal Trade Commission’s data-throttling lawsuit against AT&T, which was dismissed in August after a panel found that the company’s status as a common carrier exempted it from the FTC Act. 

Consumer Action joined a number of consumer and privacy groups in an amicus brief arguing that the case was worthy of review by an en banc panel of 11 judges from the Ninth Circuit because the panel decision was an outlier that needed correction. The panel decision, the amicus brief argued, broke from the 100-year-long understanding that the term “common carrier” is defined by activities, not status. The brief also pointed out that the panel failed to heed settled interpretive rules requiring that exemptions from antitrust laws be construed narrowly, that remedial statutes be read broadly to effectuate their purposes, and that an agency’s interpretation of its organic statute be accorded deference. The brief observed that the three-judge panel’s inversion of long-standing precedent not only would create a potentially disastrous regulatory gap, but also would put the Ninth Circuit directly in conflict with the D.C. and Second Circuits.

We are pleased that the court saw fit to agree to rehear the case, because the the three-judge panel decision in 2016 undermined the FTC's crucial consumer protection authority. (Find the brief here.)