Court Sets September Argument for FTC v. AT&T Mobility

In meantime, panel precedent is vacated
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It didn't take long for a federal court to schedule arguments in its en banc review of FTC v. AT&T Mobility, the case that could have a big impact on online privacy, but that argument won't be for a while.

The court scheduled the argument for Sept. 18 in San Francisco, with the exact time yet to be determined.

The court has given both parties seven days to provide 25 copies of their original briefs in the case.

The court earlier this week 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. 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 (full court) review is unusual, but the decision had prompted a lot of attention given that potential online privacy impact.

The three-judge panel, in overturning the FTC's action against AT&T for throttling the speeds of unlimited data customers, last August 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 extends to noncommon carrier activity by that entity as well.

That meant 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.

The FTC had sought full-court review of that decision under former Democratic chair Edith Ramirez.

FCC chairman Ajit Pai has suggested that en banc review paves the way for the FCC to restore broadband privacy authority, including rolling back the common carrier reclassification of ISPs, which returns broadband access privacy enforcement to the FTC.

(Photo via Tori Rector's FlickrImage taken on July 21, 2016 and used per Creative Commons 2.0 license. The photo was cropped to fit 3x4 aspect ratio.)

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