Ninth Circuit Dismisses FTC’s Throttling Suit Against AT&T | Inside Privacy: "In an opinion released [29/8/2016], the Ninth Circuit dismissed the Federal Trade Commission’s (“FTC”) lawsuit against AT&T for violating Section 5 of the FTC Act due to its throttling practices. AT&T’s practice of throttling the speed of customers with unlimited data plans once they reached a certain data usage threshold had been challenged by the FTC as both unfair and deceptive under Section 5. The Ninth Circuit reversed the district court’s prior ruling denying AT&T’s motion to dismiss on the ground that AT&T was a common carrier and therefore exempt from Section 5 of the FTC Act.
The Ninth Circuit presented the issue as whether the common carrier exemption in Section 5 is status-based, as AT&T argued, or activity-based, as the FTC argued. According to the FTC, companies are only exempt from Section 5 liability to the extent the activity at issue is a “common carrier activity.” The Ninth Circuit disagreed, finding that the statutory language “simply does not comport with an activity-based approach.”" 'via Blog this'