Will The FTC Really Challenge AT&T's Throttling?

Is Your Speed Being Throttled for Using Too Much Data
FTC Chairwoman Edith Ramirez on Tuesday said the Commission is seeking a re-hearing on a recent appeals court decision that allowed AT&T to wriggle free of regulation of its data throttling practices. According to Ramirez, the decision would leave an enforcement gap between the FTC and FCC’s jurisdiction if it is left to stand.

“The FCC’s authority over common carriers is limited to the provision of services for or in connection with common carriage,” Ramirez said. “If common carriers are providing non-common carrier products or services, one outcome might be that neither the FCC nor the FTC would have jurisdiction to respond to practices that harm consumers. And even in cases where the FCC can respond, it lacks authority to seek consumer redress.”

Ramirez said this loophole could potentially allow any company that has or acquires common carrier status to argue immunity from FTC action against any of its businesses. In a best case scenario, she said, the AT&T decision could result in similar services and products from two different companies – one with common carrier “status” and one without – being subject to unequal regulation.

In its 2014 lawsuit against AT&T, the FTC alleged AT&T failed to adequately explain its data throttling practices to consumers, and thus engaged in a practice that was barred under Section 5 of the FTC Act. AT&T, however, claimed it was exempt from liability under that section due to its status as a “common carrier.”

“Removing the exception from the FTC Act would enable the FTC to bring its extensive law enforcement experience to bear in protecting consumers of common carriage services (and non-common-carriage services offered by common carriers) against unfair and deceptive practices in the same way that it can protect against unfair and deceptive practices for other services,” she said. “Removing the exception is the simplest, cleanest way to ensure continued consumer protection.”
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