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Today, the full Ninth U.S. Circuit Court of Appeals issued its Federal Trade Commission v. AT&T Mobility decision, determining that the FTC still has the authority to bring enforcement actions against companies regulated by the Federal Communications Commission for their “non-common carrier” activities.
While the FCC has exclusive jurisdiction over common carrier “telecommunications services,” the two agencies share jurisdiction over non-telecommunications services. Additionally, the Court found that the FCC’s Order reclassifying broadband as a telecommunications service in 2015 did not retroactively eliminate FTC authority to punish AT&T for deceptive practices with regard to its mobile broadband service before 2015.
The FTC filed its action in the District Court in 2014. AT&T filed to dismiss the FTC’s complaint. The District Court denied AT&T’s motion to dismiss in 2015. AT&T appealed, and in 2016 a panel of the Ninth Circuit reversed, finding that the FTC had no authority over AT&T because it was also offering mobile voice service, a “common carrier” telecommunications service. The FTC appealed to the full Ninth Circuit. Public Knowledge filed an amicus brief in support of the FTC, arguing that the FTC retained jurisdiction over non-common carrier services offered by common carriers.
The following may be attributed to Harold Feld, Senior Vice President at Public Knowledge:
“As the Ninth Circuit recognized, ‘two cops on the beat is nothing unusual.’ The FCC’s 2015 classification of broadband as a Title II telecommunications service did not take away the Federal Trade Commission’s role in protecting consumers. Strong net neutrality protections enforced by the FCC were completely consistent with the FTC playing its traditional role in protecting consumers.
“Some have tried to portray today’s decision as somehow lessening the disastrous effects of the FCC’s recent net neutrality repeal. This is entirely backward. This case illustrates the problem of having the Federal Trade Commission try to do alone what it should do in partnership with the FCC.
“AT&T began deceptively throttling ‘unlimited’ customers in 2011. The FTC brought this action in 2014. Now, in 2018, the FTC gets to go back to the district court to argue the case on the merits. Today’s decision does not suddenly give the FTC new authority to replace the FCC on net neutrality. The need to reverse the FCC’s net neutrality repeal remains as urgent as ever.”