Ninth Circuit to Review FTC v. AT&T Mobility

The U.S. Court of Appeals for the Ninth Circuit has agreed to review a three-judge panel decision that left the Federal Trade Commission's authority to oversee edge-provider privacy in some circumstances very much in doubt, according to a copy of the court’s announcement of the new hearing.

The court also said that in the interim that panel decision is not to be cited as precedent of the Ninth circuit. Such en banc review is unusual, but the decision had prompted a lot of attention given that potential online privacy gap.

A three-judge panel of the Ninth Circuit, in overturning the FTC's action against AT&T for throttling the speeds of unlimited data customers, last year ruled that the regulatory exemption that prevents the FTC from regulating common carriers is not confined to common carrier "activity" by an entity that has the status of a common carrier, but to noncommon carrier activity by that entity as well.

That meant that if Verizon, a common carrier, bought Yahoo, an edge provider, the FTC could not enforce Yahoo! privacy policies, and the FCC could not either because it does not regulate edge providers, leaving a potential privacy gap.

The FTC had sought full-court review of that decision under former Democratic Chair Edith Ramirez. The agency had no immediate comment on the decision.

AT&T has said the panel got it right, and that if there was a full-court review it would conclude the same. "We have reviewed the court's order, and we look forward to participating in the en banc review," AT&T said Tuesday (MAy 9).

FCC Chairman Ajit Pai has been looking to give the FTC even more online privacy oversight by returning its broadband privacy authority over ISPs with the reversal of their common carrier desigation (Title II).

“Today’s action by the Ninth Circuit is a big win for American consumers.  Now that the court’s prior decision is no longer effective, it will be easier for the FTC to protect consumers’ online privacy," he said in a statement, adding: “The court’s action also strengthens the case for the FCC to reverse its 2015 Title II Order and restore the FTC’s jurisdiction over broadband providers’ privacy and data security practices. Indeed, it moves us one step closer to having the consistent and comprehensive framework for digital privacy that the American people deserve.”

The court has not yet ruled on the panel decision, but the combination of agreeing to the review and saying that decision no longer is circuit precedent signals it is likely to reverse.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.