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United States Court of Appeals for the Ninth Circuit
September 19, 2017, Argued and Submitted En Banc, San Francisco, California; February 26, 2018, Filed
[*850] McKEOWN, Circuit Judge:
Although this case began as an effort by the Federal Trade Commission [**5] ("FTC") to address AT&T Mobility's "data throttling"—a practice by which the company reduced customers' broadband data speed without regard to actual network congestion—the central issue is one of agency jurisdiction and statutory construction.
Section 5 of the Federal Trade Commission Act ("FTC Act"), which gives the agency enforcement authority over "unfair or deceptive acts or practices," exempts, among others, "common carriers subject to the Acts to regulate commerce." 15 U.S.C. § 45(a)(1), (2). The question is whether the common-carrier exemption is activity-based, meaning that a common carrier is exempt from FTC jurisdiction only with respect to its common-carrier activities, or status-based, such that an entity engaged in common-carrier activities is entirely exempt from FTC jurisdiction.
We affirm the district court's denial of AT&T's motion to dismiss. Looking to the FTC Act's text, the meaning of "common carrier" according to the courts around the time the statute was passed in 1914, decades of judicial interpretation, the expertise of the FTC and Federal Communications Commission ("FCC"), and legislative history, we conclude that the exemption is activity-based. The phrase "common carriers subject to the [**6] Acts to regulate commerce" thus provides immunity from FTC regulation only to the extent that a common carrier is engaging in common-carrier services.
Background and Procedural History3
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
883 F.3d 848 *; 2018 U.S. App. LEXIS 4624 **; 2018-1 Trade Cas. (CCH) P80,291; 2018 WL 1045406
FEDERAL TRADE COMMISSION, Plaintiff-Appellee, v. AT&T MOBILITY LLC, a limited liability company, Defendant-Appellant.
Prior History: [**1] Appeal from the United States District Court for the Northern District of California. D.C. No.3:14-cv-04785-EMC. Edward M. Chen, District Judge, Presiding.
FTC v. AT&T Mobility LLC, 87 F. Supp. 3d 1087, 2015 U.S. Dist. LEXIS 43272 (N.D. Cal., Mar. 31, 2015)
common carrier, exemption, FTC Act, entity, common-carrier, regulation, carrier, customers, regulate commerce, activity-based, packers, mobile, Reclassification, status-based, stockyards, practices, unfair, telecommunications, quotation, cases, marks, non-common-carriage, common-carriage, interstate, unlimited, Commerce, engaging, banks, motion to dismiss, district court
Antitrust & Trade Law, Federal Trade Commission Act, Scope, Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Governments, Legislation, Interpretation, Business & Corporate Compliance, Communications Law, Federal Acts, Federal Communications Act, Communications Law, Regulators, US Federal Communications Commission, Authorities & Powers, Telecommunications Act, Coverage & Definitions, Transportation Law, Carrier Duties & Liabilities, Definitions, Administrative Law, Judicial Review, Deference to Agency Statutory Interpretation, US Federal Communications Commission, US Federal Trade Commission, Effect & Operation, Retrospective Operation, Preliminary Considerations, Justiciability, Mootness