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9th Circuit Hands A Big Win to The FTC, Putting Another Nail in Title II’s Coffin

By Jonathan Cannon | February 28, 2018

The left said the FTC couldn’t protect consumers from so-called net neutrality violations. The 9th Circuit has now said otherwise.

On February 27th, the 9th Circuit en banc released a ruling in Federal Trade Commission v. AT&T Mobility LLC.  In this case, the court was asked to determine whether the FTC could challenge a service provider’s conduct under the FTC Actand the agency’s consumer harm and deceptive practice framework.  The FTC Act protects consumers against deceptive acts or practices but has an exemption for “common carrier” services.

In 2007, AT&T offered customers an unlimited data plan for a flat fee. In 2010, AT&T stopped offering these plans and instead offered “tiered” data plans. AT&T allowed those with unlimited data to keep their plansbut slowed down customers’ speeds if they exceeded a certain data cap. The FTC challenged AT&T’s failure to properly disclose this practice.

AT&T moved to dismiss the FTC’s challenge against them.  AT&T argued that the FTC did not have the authority to challenge their conduct as they were protected as a “common carrier.” The FTC Act prevents the FTC from challenging practices defined as “common carrier” services.  The 9th Circuit held that the “common carrier exemption” applies only to common carrier activities, not to the entire business that offers “common carrier “ services.

Most importantly, the court held that Title II’s reclassification of a mobile data service to a common carrier did not “rob the FTC of its jurisdiction or authority” for conduct occurring before the order.  Before Title II the FTC had authority over ISPs. Now that the Restoring Internet Freedom Order has passed, the FTC has authority again.

As Acting Chairman Maureen Ohlhausen saidthe ruling “ensures that the FTC can and will continue to play its vital role in safeguarding consumer interests including privacy protection, as well as stopping anticompetitive market behavior.”

Now that the court has recognized the FTC’s authority, we can move forward as we work hard to restore internet freedom.