In an event sure to garner significant attention from tech, consumer protection, and government stakeholders, oral argument on the consolidated appeals of the FCC’s Restoring Internet Freedom Order (“Order”) will take place on February 1, 2019, at the D.C. Circuit. As we previously discussed, the Order largely reversed the FCC’s own 2015 rulemaking to reclassify broadband internet access services (“BIAS”) as telecommunications services subject to a host of Title II common carrier obligations. The Order re-reclassified BIAS as information services subject to “light-touch” Title I regulations, while retaining pared-down transparency requirements on BIAS providers. The challengers allege that the FCC failed to adequately explain its changed regulatory approach, relied on faulty data, and ignored consumer complaints when issuing the Order. The oral argument will provide our first indication of which way the D.C. Circuit, which handled the last three appeals of FCC net neutrality rules with varied results, may go in this latest challenge.

Continue Reading

The Republican-led FCC’s effort to get out of the business of regulating broadband providers’ consumer practices took a step forward on Monday.  In an appeal that has been proceeding in parallel with the FCC’s “Restoring Internet Freedom” reclassification proceeding, the U.S. Court of Appeals for the Ninth Circuit issued an opinion giving the Federal Trade Commission (FTC) broad authority over practices not classified by the FCC as telecommunications services.  Specifically, the Ninth Circuit, sitting en banc, issued its long-awaited opinion in Federal Trade Commission v. AT&T Mobility, holding that the “common carrier exemption” in Section 5 of the FTC Act is “activity based,” exempting only common carrier activities of common carriers (i.e., the offering of telecommunications services), and not all activities of companies that provide common carrier services (i.e., rejecting a “status-based” exemption).  The case will now be remanded to the district court that originally heard the case.  Coupled with the FCC’s reclassification of Broadband Internet Access Services (BIAS) in the net neutrality/restoring internet freedom proceeding, the opinion repositions the FTC as top cop on the Open Internet and broadband privacy beats.

Continue Reading

This Thursday, December 14th, the FCC will vote on the Restoring Internet Freedom Order, after releasing a draft on November 22nd. The Draft Order would overturn the FCC’s earlier 2015 Open Internet Order. We don’t expect any bombshell revisions when the FCC acts, and as such we expect that the Order will:
Continue Reading

On December 11, 2017, the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) released a draft Memorandum of Understanding (MOU) which will allocate oversight and enforcement authority related to broadband Internet access service (BIAS) between the two agencies.  The new MOU was announced three days before the FCC’s scheduled vote to reclassify BIAS as an “information service,” and is expected to be finalized simultaneously with that vote.  The MOU is part of an ongoing effort to address concerns that reversing the current “net neutrality” rules will adversely affect consumers, and provides a guide for Internet service providers (ISPs) and other stakeholders to understand which agency will be taking the lead on oversight and enforcement going forward.  However, the extent to which the MOU takes effect will depend upon, among other things, the pending case interpreting section 5 of the FTC Act that is before the Ninth Circuit Court of Appeals.

Continue Reading

On November 1, 2017 the House Antitrust Law Subcommittee held a hearing to discuss the role of federal agencies in preserving an open Internet.

The core question discussed at the hearing was whether current antitrust law is sufficient to ensure net neutrality absent FCC rules. The panelists—including FTC Acting Chairman Maureen Ohlhausen and Commissioner Terrell McSweeney; former FCC Commissioner Robert McDowell; and Michael Romano, NTCA Senior Vice President of Industry Affairs and Business Development—and committee members were generally divided down party lines, with Republicans arguing that FCC rules were both unnecessary and counterproductive and Democrats arguing that rules were necessary to ensure an open Internet, free expression, and innovation.  
Continue Reading

On May 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order granting a Federal Trade Commission (FTC) request for rehearing en banc of the court’s earlier decision to dismiss an FTC case against AT&T Mobility over allegedly “unfair and deceptive” throttling practices in connection with wireless data services provided to

On January 13, 2017, the Federal Trade Commission (FTC) announced that it filed two lawsuits against more than a dozen individual and corporate defendants allegedly coordinated by two individuals.  In the complaints, the FTC alleges multiple violations of the FTC’s Telemarketing Sales Rule (TSR).  Specifically, the complaints allege that over a period several years, the defendants made unauthorized prerecorded calls using auto-dialer software to consumers throughout the U.S. in an attempt to sell or generate leads for goods or services such as extended auto warranties, search engine optimization services, and home security systems.  The FTC contends that these actions violated the TSR’s prohibition against abusive telemarketing acts or practices and initiating or causing the initiation of unlawful prerecorded messages.  The complaints further claim that many of these calls were made to phone numbers on the national Do Not Call Registry, which is a separate TSR violation.

Continue Reading

On October 13, 2016, the Federal Trade Commission (FTC) filed a petition in the U.S. Court of Appeals for the Ninth Circuit requesting a rehearing en banc of the court’s decision in the FTC’s case against AT&T alleging that the company dramatically reduced – or “throttled” – data speeds for certain customers on unlimited data plans once those customers had used a certain level of data.  A three-judge panel for the Ninth Circuit determined in August 2016 that the case should be dismissed because AT&T was not subject to an FTC enforcement action due to the company’s status as a common carrier.  As we noted in a previous blog post, this case could reset the jurisdictional boundaries between the FTC and the Federal Communications Commission (FCC) with respect to phone companies, broadband providers and other common carriers.

Continue Reading

On October 6, 2016, Federal Communications Commission (FCC or Commission) Chairman Tom Wheeler published a blog entry on the Commission’s website outlining proposed privacy rules for broadband Internet Service Providers (ISPs). The proposed rules are scheduled to be considered by the full Commission at its monthly meeting on October 27, 2016. These rules come after the Commission received substantial public comment on its March notice of proposed rulemaking (discussed in an earlier blog post) from stakeholders representing consumer, public interest, industry, academics, and other government entities including the Federal Trade Commission (FTC). The proposed rules appear to soften several elements of the Commission’s initial proposal, which received considerable industry criticism.

Continue Reading

On Monday, August 29, 2016, the Ninth Circuit Court of Appeals issued an opinion that may dramatically alter the boundaries between the Federal Trade Commission’s (FTC) and Federal Communications Commission’s (FCC) authority over phone companies, broadband providers, and other common carriers.  The Ninth Circuit dismissed a case that the FTC brought against AT&T over its practices in connection with wireless data services provided to AT&T’s customers with unlimited data plans.  The FTC had filed a complaint against AT&T for “throttling” the data usage of customers grandfathered into unlimited data plans.  Once customers had used a certain level of data, AT&T would dramatically reduce their data speed, regardless of network congestion.  The FTC asserted that AT&T’s imposition of the data speed restrictions was an “unfair act or practice,” and that AT&T’s failure to adequately disclose the policy was a “deceptive act or practice.”

The Ninth Circuit’s decision is the latest in a series of actions attempting to identify the jurisdiction over Internet access services and Internet-based services.  As providers and regulators have struggled to identify the proper regulations applicable to such services, the Ninth Circuit’s decision could force significant shifts by both the FTC and FCC for at least a large segment of the industry.


Continue Reading