Section 5 of the FTC Act grants the regulatory jurisdiction over unfair or deceptive acts or practices in commerce but exempts some industries regulated by other agencies, such as banks and other regulated financial institutions and “common carriers subject to the Acts to regulate commerce.” This decision holds that the exemption applies to common carriers only to the extent they are engaging in common carrier services. Here, until the FCC redefined mobile data transmission services to be a common carrier service subject to FCC regulation, AT&T Mobility’s mobile data transmission service was not a common carrier service and so during that period, it was subject to FTC regulation. Hence, the FTC’s complaint against AT&T Mobility for “throttling” consumer customers fell within the scope of the FTC’s regulatory powers and properly survived AT&T Mobility’s motion to dismiss.
Ninth Circuit Court of Appeal (McKeown, J.); February 26, 2018; 2018 WL 1045406.