When is an Entity a Common Carrier Exempt from FTC Enforcement?

The en banc 9th U.S. Circuit Court of Appeals affirmed the district court’s denial of AT&T Mobility’s motion to dismiss an action brought by the FTC under Section 5 of the FTC Act, alleging that AT&T’s data-throttling plan was unfair and deceptive. The en banc court held that the FTC Act’s common carrier exemption was activity-based, and therefore the phrase “common carriers subject to the Acts to regulate commerce” provided immunity from FTC regulation only to the extent that a common carrier was engaging in common carrier services. In reaching this conclusion, the en banc court looked 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.