Antitrust Law Daily Wrap Up, CONSUMER PROTECTION NEWS: FTC Commissioners fear open Internet changes could stymie enforcement, (Jan 8, 2015)

By Brian Hammond,TR Daily

FTC Commissioner Maureen Ohlhausen said yesterday that if the FCC reclassifies broadband as a Title II service, it could jeopardize the agency’s ability to bring enforcement actions, such as one it took against an Internet service provider for throttling traffic.

Speaking at the 2015 International Consumer Electronics Show in Las Vegas, Commissioner Ohlhausen said the concern is that classifying broadband as a Title II service could make it subject to the common carrier exemption, which prevents FTC oversight of common carrier services.

"One part of the previous open Internet order that the D.C. Circuit upheld was the transparency requirement," Ohlhausen observed. "They have to say what they're doing. If they make a promise and they don't adhere to it, the FTC can bring an enforcement action.”

"Should the FCC reclassify broadband as a Title II, common carrier service, that raises a serious question about whether we will be able to act to protect consumers in this space," she said. If the FCC does reclassify broadband under Title II, "I would hope [FCC Chairman Tom Wheeler] would consider also maybe recommending that the FTC's common carrier exemption be removed."

FTC Commissioner Julie Brill also called for elimination of the common carrier exemption. "The FTC should be able to jump in on these cases without worrying precisely where the line is drawn," she asserted.

In October 2014, the FTC filed a complaint against AT&T Mobility, alleging that the company failed to adequately disclose to customers on unlimited data plants that, if they reached a certain amount of data use in a given billing cycle, AT&T would “throttle” their data speeds, in some cases up to 90 percent.

The suit charged that AT&T violated the FTC Act by changing the terms of customers’ unlimited data plans while those customers were still under contract, and by failing to adequately disclose the nature of the throttling program to consumers who renewed their unlimited data plans.

On January 5, AT&T moved to dismiss the suit for lack of jurisdiction, contending that the company was exempt from FTC enforcement authority as a common carrier under the Communications Act.

News: ConsumerProtection FederalTradeCommissionNews