FTC V. AT&T Mobility, LLC, No. 15-16585 (9th Cir. 2018)
Annotate this Case
The en banc court affirmed the district court's denial of AT&T Mobility's motion to dismiss an action brought by the FTC alleging that AT&T's data-throttling plan was unfair and deceptive.
After determining that the district court had federal question jurisdiction, the en banc court held that the Federal Trade Commission Act's, 15 U.S.C. 45(a)(1), (2), common-carrier exemption was activity-based, and therefore the phrase "common carriers subject to the Acts to regulate commerce" provided immunity from FTC regulation only to the extent that a common carrier was engaging in common carrier services. The en banc court also held that the FCC's order reclassifying mobile data service did not rob the FTC of its jurisdiction or authority over conduct occurring before the order.
Court Description: Federal Trade Commission The en banc court affirmed the district court’s denial of AT&T Mobility’s motion to dismiss an action brought by the Federal Trade Commission (“FTC”) under Section 5 of the FTC Act, alleging that AT&T’s data-throttling plan was unfair and deceptive. AT&T Mobility’s data-throttling is a practice by which the company reduced customers’ broadband data speed without regard to actual network congestion. Section 5 of the FTC Act gives the agency enforcement authority over “unfair or deceptive acts or practices,” but exempts “common carriers subject to the Acts to regulate commerce.” 15 U.S.C § 45(a)(1), (2). AT&T moved to dismiss the action, arguing that it was exempt from FTC regulation under Section 5. As a threshold issue, the en banc court held that the federal district court had federal question jurisdiction because the dispute was one “arising under federal law,” and the motion to dismiss was more properly treated as a Fed. R. Civ. P. 12(b)(6) motion for failure to state a claim. The en banc court held that the FTC Act’s common- carrier exemption was activity-based, and therefore the phrase “common carriers subject to the Acts to regulate commerce” provided immunity from FTC regulation only to
This opinion or order relates to an opinion or order originally issued on August 29, 2016.