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On February 26, 2018, an en banc federal appeals court held that the common carrier exception in the Federal Trade Commission (FTC) Act that preempts FTC jurisdiction is “activity-based” rather than “status-based” and therefore applies only to the extent an entity engages in common-carrier services. See FTC v. AT&T Mobility LLC, No. 15-16585, D.C. No. 3:14-cv-04785EMC (Opinion) (9th Cir. Feb. 26, 2018). The decision affirmed the Northern District of California’s denial of AT&T Mobility LLC’s motion to dismiss.

In 2010, AT&T switched its mobile data plan offering from “unlimited” to “tiered” but allowed existing customers to retain their unlimited data plans. In 2011, AT&T reduced unlimited customers’ broadband data speed without regard to actual network congestion if they exceeded a preset limit. The FTC filed an action in October 2014 under section 5 of the FTC Act, alleging AT&T’s data-throttling plan was unfair and deceptive. AT&T moved to dismiss, arguing it was exempt due to common carrier status.

Section 5 exempts “common carriers subject to the Acts to regulate commerce.” 15 U.S.C. § 45(a)(1), (2). Although providing mobile data was not a “common carrier service” at the time the FTC filed suit, the Federal Communications Commission (FCC) reclassified mobile data as a common-carriage service in 2015 while AT&T’s motion to dismiss was pending. See In the Matter of Protecting and Promoting the Open Internet, 30 F.C.C. Rcd. 5601, 5734 n.792 (2015) (Reclassification Order). The FCC reversed the Reclassification Order in early 2018. See In the Matter of Restoring Internet Freedom, W.C. Dkt. No. 17-108, 2018 WL 305638, at *1 (Jan 4, 2018).Continue Reading Ninth Circuit calls common carrier exception “activity-based”

On October 26, the Federal Communications Commission convened a second meeting of the Robocall Strike Force, which has been working for two months to develop solutions to the problem of illegal and unwanted robocalls. The Strike Force, led by AT&T CEO Randall Stephenson, was established at the behest of FCC Chairman Tom Wheeler, and is composed of members from 33 companies in the telecommunications industry. Its charge was to develop innovative and comprehensive solutions to detect and prevent undesired calls to consumers.

Unwanted phone calls and text messages continue to be the number one complaint to the FCC by a wide margin, and the volume of such complaints continues steadily to rise, despite the Commission’s laborious efforts, through rulemakings and the issuance of declaratory rulings, to interpret the Telephone Consumer Act (TCPA), the statute giving the FCC authority over unwanted calls, in a more and more consumer-friendly fashion, and despite both a stepped-up enforcement at the FCC and a continuous deluge of private class action lawsuits.Continue Reading FCC Robocall Strike Force Releases Its Report on Curbing Unwanted and Illegal Robocalls

This post was also written by Frederick Lah.

On Tuesday, the U.S. Supreme Court held that corporations do not have “personal privacy” under the Freedom of Information Act (“FOIA”). The decision comes just one year after the decision in Citizens United v. Federal Election Commission. In Citizens United, the Supreme Court, in a 5-4 opinion, ruled that a federal law banning corporations and unions from financing political spending was unconstitutional. Many critics of the decision felt that the Court was treating corporations as individual persons, with First Amendment free speech rights. Many of those same critics were concerned that the Court was going to take another step in that direction with the AT&T case.

Instead, the Supreme Court ended up ruling that corporations do not enjoy “personal privacy” under FOIA. Back in 2005, a trade association representing some of AT&T’s competitors submitted a FOIA request for information submitted by AT&T to the FCC during an investigation for alleged overbilling. Under FOIA, federal agencies are exempt from disclosing law enforcement records which could reasonably be expected to constitute an “unwarranted invasion of personal privacy.” While FOIA defines the term “person” to include corporations, it does not define the term “personal.” AT&T argued that it is a corporate citizen with “personal privacy” rights protected by the exemption and that it should therefore be protected from any disclosure that would embarrass it.Continue Reading SCOTUS: Corporations Do Not Have “Personal Privacy” under FOIA