Comcast, Other ISPs Back FTC Against AT&T Mobility

Say Ninth Circuit decision leaves regulatory gap

In what they concede on the surface is a surprising alliance, major ISPs have aligned with theFederal Trade Commissionand theFCCagainst AT&T Mobility over the issue of the FTC's ability to enforce edge provider privacy.

That came in an amicus brief to the U.S. Court of Appeals for the Ninth Circuit.

"At first glance, amici’s position might seem surprising—four leading corporations are arguing in favor of restoring the FTC’s authority to regulate their non-common carriage activities," they said. "On closer inspection, however, this position aligns with the companies’ desire to reinstate a predictable, uniform, and technology-neutral regulatory framework that will best serve consumers and businesses alike."

Signing on to that brief were Charter, Comcast, Cox, and Verizon.

RELATED: FCC backs FTC in Ninth Circuit

They did not rag onAT&T, only commenting on what the impact of a decision in its favor would have on the wider regulatory landscape. "Amici do not doubt AT&T’s commitment to the protection of its consumers, and they take no position on the merits of the FTC’s underlying allegations that AT&T’s practices were unfair or deceptive. But the important regulatory goals that are at stake in this case cannot be achieved if the en banc Court accepts the panel’s interpretation."

The U.S. Court of Appeals for the Ninth Circuit in May agreed to an en banc (full court) review of its three-judge panel decision that left the Federal Trade Commission's authority to oversee edge-provider's protections of privacy in some circumstances very much in doubt. The court also said that in the interim that panel decision was 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 impact.

The three-judge panel, in overturning the FTC's action against AT&T for throttling the speeds of unlimited data customers,last August ruledthat the regulatory exemption that prevents the FTC from regulating common carriers is not "activity-based," confined to common carrier "activity" by an entity that has the status of a common carrier, but is status-based, extending to non-common 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.

"This result would leave significant “regulatory gaps” that other federal, state, or local legislative and regulatory bodies almost certainly would seek to fill," said Charter et al. in the amicus brief. "But it is crucial to amici and to their customers that the regulatory bodies with greatest expertise in the relevant subject areas continue to have the authority to enforce consumer protection laws. It is equally important that these laws be enforced consistently and uniformly across the American economy. The panel’s decision undercuts these important regulatory objectives and creates the risk that other, less expert federal, state, or local agencies will inconsistently fill perceived 'regulatory gaps' in the FTC’s absence."