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Ninth Circuit Hears Federal Trade Commission’s Throttling Case Against AT&T

Earlier this week, the Ninth Circuit heard oral argument in AT&T’s appeal of a lower court decision to not dismiss the Federal Trade Commission’s (FTC’s) complaint alleging that AT&T misled consumers by limiting its “unlimited” data plan for mobile customers.

As we previously reported, 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.  That Motion was denied by the lower court, which held 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 court also held that the Federal Communications Commission’s recent “Open Internet” that prospectively reclassified mobile data service from a non-common carrier to a common carrier service does not remove the FTC’s jurisdiction over AT&T’s past alleged misconduct.  It was this lower court denial of the Motion to Dismiss that AT&T appealed to the Ninth Circuit.

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Covington’s Election and Political Law practice is one of the oldest in the Nation.  In addition to our high-profile election law litigation and Federal Election Commission enforcement practice, we advise numerous Fortune 50 and Fortune 500 corporations, trade associations, financial institutions, political party committees, PACs, candidates, lobbying firms, and high net-worth individuals concerning compliance with the increasingly complex array of laws governing the political process.  These include federal and state campaign finance, lobbying disclosure, and government...

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