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AT&T v. FCC may determine the future of net neutrality

RICHARD WEINER
Technology for Lawyers

Published: June 9, 2017

With all of the controversy surrounding the new head of the FCC’s attitudes toward “net neutrality,” a court case out in California lurks behind the shadows of this issue, and may have more of a role in determining the future of net neutrality than the FCC itself.

Brian Fung, the Washington Post’s tech writer, is reporting on an under-reported federal technology case that, once thought dead, has sprung back to life, and which may have far-reaching effects on the future of net neutrality and other legal aspects of the internet.

The 9th Circuit case is FTC (Federal Trade Commission) v. AT&T Mobility (Case No. 15-16585).

The case was seemingly decided last year, but the court just granted a new hearing which may of course overturn the past ruling or not or change it or whatever.

The case involved AT&T’s “data throttling” of customers using so-called monthly mobile “unlimited data” plans once certain data limits were met.

But the larger issue was whether the FTC or the Federal Communications Commission (FCC) was the appropriate body to regulate mobile data service and, by implication, any data flow through the internet.

The initial ruling last August held that the FTC should be banned from regulating any company if even a small part of that company is in the telecommunications business. In that case, the court ruled, regulations of the entire company should come from the FCC.

That ruling overturned a “century’s worth” of precedent.

The effects of this ruling are vast and earthshaking for these industries and their customers. The FTC and the FCC regulate their charges in very different ways.

The FTC strictly and prospectively regulates companies under its aegis, historically bringing numerous lawsuits against companies like Google and Microsoft. The FCC can only regulate the common-carrier part of a business.

The practical result of the August ruling seemed to basically deregulate the non-common-carrier parts of any business that has a partial stake in telecommunications. And that would be prospective, and might cause, say, Facebook to purchase some small phone company and then be completely off limits to FTC regulation.

Looks like the court may have realized the large pile of dark-brown goo it just stepped in in August and is giving itself another whack at it. Keep a lookout—this is a big deal.


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