Federal court to revisit FTC's throttling case against AT&T

The revived case could have a major impact on the continued debate over broadband regulations and net neutrality.
Written by Stephanie Condon, Senior Writer

A federal appeals court said Tuesday that it plans to review a ruling it delivered last year, when it threw out a Federal Trade Commission lawsuit against AT&T Mobility for throttling the speeds of its unlimited data customers.

The case could have significant implications for the debate over net neutrality and the oversight of internet service providers.

In a suit filed in 2014, the FTC charged the cellular giant misled its customers about its unlimited data plans. However, last year, a three-judge panel of the Ninth Circuit Court of Appeals dismissed the case. Now, an 11-judge panel will review the case.

In last year's ruling, the court panel ruled that AT&T should be exempt from all FTC regulatory oversight because it qualifies as a common carrier.

Before 2015, the FTC regulated internet service providers (ISPs) like AT&T and Verizon, but the Federal Communications Commission (FCC) in 2015 ruled that ISPs qualify as common carriers under Title II of the 1934 Communications Act.

Congress bars the FTC from regulating common carriers, but the agency continued to regulate "non-common carrier" services provided by such companies. In October, the FTC argued that the

Ninth Circuit's broad ruling would create an "enforcement gap" in which no federal agency could oversee non-common carrier services provided by common carriers. For instance, when Verizon completes its acquisition of Yahoo, Yahoo services could be exempt from FTC regulation.

In its Tuesday filing, the court said, "the three-judge panel disposition in this case shall not be cited as precedent by or to any court of the Ninth Circuit."

President Trump's FCC Chairman Ajit Pai praised the Ninth Circuit's decision to revisit the ruling, suggesting it could help his efforts to roll back net neutrality rules.

The court's decision, he said in a statement, "strengthens the case for the FCC to reverse its 2015 Title II Order and restore the FTC's jurisdiction over broadband providers' privacy and data security practices. Indeed, it moves us one step closer to having the consistent and comprehensive framework for digital privacy that the American people deserve."

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