WASHINGTON D.C. —­­ Today, the Ninth Circuit Court of Appeals unanimously ruled that the Federal Trade Commission acted within its authority in bringing a claim against AT&T over its data-throttling practices. Last summer, a three judge panel blocked the FTC’s suit against AT&T, finding that the FTC’s otherwise general jurisdiction to police deceptive acts and practices did not include companies that have the status of common carriers, even if the particular activities at issue were not common carrier services. This surprise ruling upset a decades-long understanding that the “common carrier exception” to the FTC was based on activity, not status.

Net neutrality advocates complained that, even when the Republican Federal Communications Commission reclassified broadband providers as non-common carriers, as it finally did in December, the FTC would not regain certain authority to police net neutrality concerns because nearly all broadband providers also provide telephony, which remains a common carrier service. In May, 2017, the full circuit agreed to rehear the case en banc, taking the unusual step of vacating the panel decision, which indicated that the panel decision would be overruled.

The decision removes any doubt: the FTC can and will police net neutrality, broadband privacy and any other broadband consumer protection or competition concern that might arise,” said Berin Szóka, President of TechFreedom. “This decision should surprise no one, since the court had already vacated the panel decision — but that didn’t stop Title II zealots from insisting that the sky would fall if the FCC didn’t maintain common carriage authority over broadband. That argument has always been a pretext for those who simply want to regulate the Internet as railroads were regulated in the 19th century, and Ma Bell was last century.”

Tomorrow’s ‘Day of Action’ is really a ‘Day of Distraction,’ intended to further delay resolution of an issue that has proven a financial bonanza for activist groups and a political winner for the left wing of the Democratic Party,” concluded Szóka. “Today’s panel decision removes some of the fear, uncertainty and doubt that has clouded this issue. If anyone still worries that another circuit might someday rule differently, the answer is obvious: legislation. In a better world, lawmakers would finally come together to resolve this debate by codifying net neutrality principles in exchange for preventing the FCC from claiming a blank check to regulate the Internet. Many Democrats will doubtless want to do just that, at least after Senate Democrats fail in their bid to lock in Title II regulation forever with a Congressional Review Act resolution of disapproval. Sadly, experience suggests that the Democrats who simply want a popular issue to use against Republicans will prevail over those Democrats who actually want to resolve the issue and move on.”


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