AT&T Case 'Murky,' But Has Important Implications for FTC, FCC, Says ITIF Analyst
The 9th U.S. Circuit Court of Appeals' ruling that the FTC had no jurisdiction over AT&T in a data throttling case “has important, if murky, implications for the future jurisdictional lines” between the FTC and FCC, said Doug Brake, telecom…
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policy analyst at the Information Technology and Innovation Foundation, in a Friday blog post. The 9th Circuit Aug. 29 dismissed an FTC lawsuit alleging that AT&T failed to adequately disclose its data throttling policy to customers with unlimited data plans (see 1608290032 and 1608300055). “While some reactions were overblown, just how far the fallout spreads is not clear,” Brake wrote. “Regardless, the case warrants attention from policymakers on Capitol Hill, at the FCC, and elsewhere.” The court said the FTC common-carrier exemption is status-based, “triggered simply by virtue of the fact that a company is a common carrier,” rather than activity-based, “triggered only when a firm is engaging in common carrier activities,” Brake said. If the 9th Circuit decision stands, it could have implications for FCC-proposed rules on ISP privacy, he said. “When it comes to privacy, the FCC could and should leave broadband privacy to the FTC, but that seems unlikely if not impossible under this case,” Brake said. “The role of the FTC could diminish if the Ninth Circuit’s thinking is followed.”