Ninth Circuit To Review FTC v. AT&T Mobility

The US Court of Appeals for the Ninth Circuit has agreed to review a three-judge panel decision that left the Federal Trade Commission's authority to oversee edge-provider privacy in some circumstances very much in doubt, according to a copy of the court’s announcement of the new hearing. The court also said that in the interim that panel decision is not to be cited as precedent of the Ninth circuit. Such en banc review is unusual, but the decision had prompted a lot of attention given that potential online privacy gap.

A three-judge panel of the Ninth Circuit, in overturning the FTC's action against AT&T for throttling the speeds of unlimited data customers, in 2016 ruled that the regulatory exemption that prevents the FTC from regulating common carriers is not confined to common carrier "activity" by an entity that has the status of a common carrier, but to noncommon carrier activity by that entity as well. That meant that if Verizon, a common carrier, bought Yahoo, an edge provider, the FTC could not enforce Yahoo! privacy policies, and the FCC could not either because it does not regulate edge providers, leaving a potential privacy gap.