The Ninth Circuit announced today that the full court will rehear the case in which the three-judge panel opinion had dismissed the FTC’s lawsuit against AT&T for allegedly violating Section 5 of the FTC Act due to past “throttling” practices around unlimited data plans. According to the panel opinion, the FTC lacked jurisdiction over AT&T’s practices because of AT&T’s status as a common carrier, even though AT&T was engaging in non-common carrier activities.
The FTC had previously filed a petition for en banc review of the panel opinion, and that petition was supported by the FCC, among others. This case has important consequences for the scope of the FTC’s enforcement jurisdiction over non-common carrier activities of communications providers—a subject of particular relevance following FCC Chairman Pai’s recent proposal to re-classify broadband Internet access service as an “information service” under the Communications Act.
The Ninth Circuit has announced that the en banc oral argument will take place during the week of September 18, 2017, with the specific date and time to be determined later.