9th Circuit En Banc Panel Sides With FTC Against AT&T in Key Jurisdictional Case

Federal judges upheld a district court denial of an AT&T motion to dismiss an FTC action alleging the carrier's mobility unit data-throttling plan is unfair and deceptive. The ruling appears to preserve FTC authority over the non-common-carrier activities of common carriers such as AT&T Mobility. An en banc panel of the U.S. 9th Circuit Court of Appeals said an FTC common-carrier exemption is "activity based," covering common-carrier activities only, not "status based," which would also cover non-common-carrier activities of common carriers.

"The phrase 'common carriers subject to the Acts to regulate commerce' thus provides immunity from FTC regulation only to the extent that a common carrier is engaging in common-carrier services," said the opinion (in Pacer) of the en banc panel in FTC v. AT&T Mobility No. 15-16585. "Reaffirming FTC jurisdiction over activities that fall outside of common-carrier services avoids regulatory gaps and provides consistency and predictability in regulatory enforcement."

AT&T and the FTC didn't comment right away in the minutes after the decision was issued Monday.