January 16, 2022

Volume XII, Number 16

Advertisement
Advertisement

January 15, 2022

Subscribe to Latest Legal News and Analysis

January 14, 2022

Subscribe to Latest Legal News and Analysis

FTC’s Throttling Case Against AT&T to be Heard by Ninth Circuit

A federal judge in the Northern District of California recently certified his denial of AT&T’s Motion to Dismiss the Federal Trade Commission’s (FTC’s) complaint alleging that AT&T misled consumers by limiting its “unlimited” data plan for mobile customers. This means that AT&T will now be able to appeal that decision to the Ninth Circuit.

In October 2014 the FTC filed a complaint alleging that AT&T engaged in unfair and deceptive conduct in violation of Section 5 of the FTC Act when it “throttled” mobile broadband subscribers who were “grandfathered” into the company’s unlimited mobile data plan. AT&T filed a Motion to Dismiss arguing that it is a common carrier subject to the Communications Act and thus exempt from Section 5 of the FTC Act. On March 31, Judge Edward Chen denied AT&T’s Motion, holding that the common carrier exception applies only when the entity has the status of a common carrier and is engaging in common carriage activity. The Order also held that the Federal Communications Commission’s (“FCC’s”) recent “Reclassification Order” that prospectively reclassified mobile data service from a non-common carriage to a common carriage service does not wrest from the FTC jurisdiction over AT&T’s past alleged misconduct.

On May 15, Judge Chen certified his order denying dismissal of the FTC’s complaint, which means that AT&T can now appeal it to the Ninth Circuit. Judge Chen held that AT&T’s Motion to Dismiss involves two issues that raise “novel and difficult questions of first impression” for which there is “a substantial ground for difference of opinion” — (1) whether the common carrier exception in Section 5 of the FTC Act applied to AT&T and (2) whether the FCC’s Reclassification Order stripped the FTC of urisdiction to pursue the case, even if limited to AT&T’s past misconduct. In addition, Judge Chen found that “there is no real dispute that the two issues identified by AT&T are controlling questions of law and that an immediate appeal may materially advance the ultimate termination of the litigation.”

© 2022 Covington & Burling LLPNational Law Review, Volume V, Number 139
Advertisement

About this Author

Covington advises and represents pharmaceutical manufacturers, device manufacturers, hospitals, health plans, and other health care providers on issues involving reimbursement in the Medicare and Medicaid programs and issues of health information privacy.  Our broad practice and deep-rooted understanding of the structure and operations of federal and state reimbursement programs enable us to develop workable solutions to complex problems and to assist our clients in developing strategies that provide a competitive advantage, minimize risk, and optimize opportunities.  ...

202-662-5320
Advertisement
Advertisement
Advertisement