9th Circuit Ruling on FTC Case Against AT&T Resets Boundaries for FTC, FCC, Say Telecom Lawyers
The 9th Circuit Court of Appeals' Monday ruling in the FTC lawsuit against AT&T "appears to have significantly reset the boundaries between the [FTC's and FCC]'s] jurisdictions," wrote Kelley Drye telecom attorneys Steve Augustino and Jameson Dempsey in a Tuesday…
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note. The 9th Circuit dismissed an FTC lawsuit that said AT&T failed to adequately disclose its data throttling policy to customers with unlimited data plans, which amounted to an unfair and deceptive practice (see 1608290032 and 1608300055). Augustino and Dempsey said the decision makes it more difficult for the FTC to bring action against any company claiming to be a common carrier and "even providing only a small amount of common carrier service may be enough to qualify all of a company’s activities for the common carrier exemption." They said if the FTC appeals the ruling, industry and practitioners could get "welcome guidance" and the court decision could "add fuel" to commission's longtime call to end the common-carrier exemption. Augustino and Dempsey said FCC authority to address common-carrier practices on advertising and billing will continue, but the 9th Circuit's ruling "may encourage the FCC to fill any potential gap in coverage by taking a broader view of its own authority to regulate non-common carrier services that common carriers offer to consumers." This might have "significant implications" for ongoing FCC proceedings, including one to revamp privacy rules and requests to classify SMS messaging and interconnected VoIP service as subject to common-carrier regulation, wrote the lawyers. Scott Cleland, chairman of broadband ISP-backed NetCompetition, said in a blog post Wednesday that rather than concern themselves about "duplicative, redundant or inconsistent oversight oversight" cited in an FTC-FCC memorandum of understanding on working together (see 1511160067), they "now have to worry about the unexpected gaping hole in consumer protection authority." Cleland said the 9th Circuit created unintended consequences in the set-top box area, broadband privacy rules, possible common-carrier status for Google and incentive for other companies to try to exempt themselves from FTC oversight. He said both agencies will have to work with Congress "forthwith, to modernize communications, consumer protection, and privacy law to be consumer-centric."