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Federal Trade Commission v. AT&T Mobility, LLC

In this case, a panel of the Ninth Circuit held that an exception in the Federal Trade Commission Act (FTC Act) for “common carriers subject to the Acts to regulate commerce,” 15 U.S.C. § 45(a)(2), applies to an entity with the “status” of a common carrier even when the entity is engaged in non-common-carrier activity. The Federal Trade Commission (FTC) moved for rehearing en banc.  On behalf of Senator Richard Blumenthal, we filed an amicus brief in support of the FTC’s petition. The brief explained that the panel’s  interpretation of the common-carrier exception is contrary to congressional intent and long-standing understandings of the FTC Act and, if allowed to stand, would create a regulatory gap that would allow unfair, deceptive, and fraudulent behavior to go unchecked, harming consumers and increasing unfairness in the marketplace. On May 9, 2017, the Ninth Circuit granted rehearing en banc.  On February 26, 2018, the en banc court held that the common-carrier exception is activity-based, rather than status-based, and that the exception therefore only applies when common carriers are engaging in common-carrier services.