The FTC is looking to continue its battle with AT&T even after an appellate court dismissed the FTC’s lawsuit against them, asserting that AT&T mislead over 3.5 million customers. The FTC claims that after selling them services that included unlimited data, AT&T would then throttle their broadband connection speed considerably if they exceeded a certain monthly allowance of 3GB or 5GB, depending on the phone the consumer had.

The FTC is attempting to have the appellate court reassess its decision of the dismissal of the FTC’s lawsuit. The FTC writes “The panel’s ruling thus threatens to undermine consumer protection across the economy, leaving millions of consumers defenseless against garden-variety deception and high-tech threats.”

AT&T’s support of the dismissal is based on the belief that the fact that the FTC doesn’t have authority to take enforcement action against common carriers. Mobile broadband received the classification of common carrier in 2015, but before that reclassification it was considered to be an “information” service, which is something that FTC has enforcement jurisdiction over.

US District Court Judge Edward Chen, from the Northern District of California, ruled last year that the net neutrality order doesn’t “deprive the FTC of any jurisdiction over past alleged misconduct.”

Then AT&T appealed Judge Chen’s ruling, and late last year the ruling was over turned by a three-judge appellate. It was stated that the FTC doesn’t possess the authority to pursue enforcement actions when it comes to common carriers, even if the issue they are trying to act on is a non-common carrier service.

So now, the FTC is looking to have a new hearing concerning the ruling. The FTC contends that the ruling from late last year “creates an enforcement gap that would leave no federal agency able to protect millions of consumers across the country from unfair or deceptive practices or obtain redress on their behalf.” In addition, the FTC states that there are many tech businesses that provide a combination of non-common carrier and common carrier services.

The FTC states “The panel’s ruling calls into question the FTC’s ability to protect consumers from unlawful practices by such companies in any of their lines of business.” In addition, the FTC states, “The problem is especially severe in the area of consumer data privacy and security,” meaning that this ruling would take away the FTC’s jurisdiction to pursue any business that provides common carrier services.

FTC Commissioner Maureen Ohlhausen spoke to a Senate panel in September of this year, stating “Although the FTC has nearly a century of experience protecting consumers across many industries, the exemption from our jurisdiction for common carriers frustrates effective consumer protection with respect to a wide array of activities, including fraud and billing practices in the crucially important telecommunications and Internet industries.”

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