In late August 2016, a Ninth Circuit panel unanimously held that the FTC has no power to challenge “throttling” of unlimited data plan customers by mobile broadband providers as an “unfair or deceptive act.” The panel found that a core source of FTC authority (Section 5 of the FTC Act) does not apply to any “common carriers” that are subject to regulation under the Communications Act of 1934. FTC v. AT&T Mobility LLC.

Critically, the panel found that the “common carrier” exception to section 5 applies based on the status of the entity as a regulated common carrier, not whether the particular activities at issue are regulated common carrier services. Given the FCC’s 2015 reclassification of all public broadband services (wired and mobile) as “common carrier” services, the decision potentially could be applied to exempt cable companies and other broadband providers (e.g., Google) from FTC Act section 5 enforcement actions for all of their services, not just those subject to the Open Internet Order.

Read the full post on our New Media and Technology Law Blog.