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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”

Italy’s Chamber of Deputies has proposed a ‘Draft Declaration of Internet Rights’ (Declaration), acknowledging both the way in which the internet has changed interactions and the way it has erased borders, but also noting that the EU’s protection of personal data is a necessary reference for governing operation of the internet. The Declaration is now open to public consultation until 27 February 2015.

The aim of the Declaration is to establish some general principles to be implemented by national legislation. It consists of a preamble and 14 articles covering topics including the fundamental right to internet access, net neutrality and right to be forgotten.

In particular, there is strong emphasis on the protection of the individual from widespread monitoring. Article 9 of the Declaration, for example, states that restrictions on anonymous communications “may be imposed only when based on the need to safeguard the public interest and are necessary, proportionate, and grounded in law and in accordance with the basic principles of a democratic society.”

This publication is not the first of its kind and follows the German Bundestag committee work on the ‘Digital Agenda’, France’s parliamentary committee report on Rights and Liberties in the Digital Age, and Brazil’s Marco Civil.Continue Reading Italy Releases Draft Declaration of Internet Rights