Legal Issues

by Karl Bode


Filed Under:
broadband, fcc, ftc, net neutrality, oversight, privacy

Companies:
at&t



AT&T Continues Fight To Gut FTC Authority Over Broadband Monopolies

from the have-your-cake-and-eat-it-too dept

For years, massive broadband providers (and the lawmakers and think tankers paid to love them) have repeatedly stated that gutting net neutrality and FCC oversight of ISPs is no big deal because the FTC will rush in and protect consumers. When ISPs like Comcast convinced the Trump FCC to kill net neutrality, they repeatedly proclaimed that the FTC would step in and ensure that nothing bad would happen. When ISPs lobbied Congress to kill off some modest consumer privacy protections, again they proclaimed that this was no big deal because the FTC would ride in and keep consumers safe from monopoly bad behavior.

But while ISP lobbyists are claiming that neutering the FCC is a great idea because the FTC will fill the void, they consistently "forget" to mention that AT&T has been busy in court trying to gut FTC authority over ISPs entirely. You'd think that's kind of important to mention, but large ISP mouthpieces are understandably busy these days, so perhaps it just got lost in the lobbyist paperwork shuffle.

AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. You'll recall that AT&T had been waging a not-so-subtle war on unlimited data users as it tried to drive them to more expensive, metered plans. Amusingly, AT&T lawyers tried to argue in court that the company's "common carrier" status -- the same status it has fought viciously against on the net neutrality front -- exempted it from FTC authority almost entirely under Section 5 of the FTC Act. As we noted at the time, it was a very clever Schrodinger-esque tap dance.

At the time, the FTC issued a warning stating that should AT&T lawyers be successful, any company with a common carrier component (from Google to oil conglomerates) could tap dance around FTC oversight. Those without such components could simply buy or merge with a small company with a common carrier component to nab the same benefit. This, the FTC warned, would create a massive accountability and enforcement gap regarding corporate America.

Fortunately for consumers, AT&T's legal efforts have seen mixed results. AT&T won a major ruling in the case back in August of 2016, but the FTC won the most recent federal appeals court decision. Undaunted, AT&T made it clear this week that this is a battle it intends to take to the Supreme Court:

"AT&T intends to file a petition for certiorari in the Supreme Court" by the deadline of May 29, according to a joint case management update filed last week. An AT&T victory could leave many ISPs in a regulation-free zone. The Federal Communications Commission in December 2017 voted to eliminate net neutrality rules and relinquish its authority to regulate ISPs as common carriers. One of the FCC's justifications for deregulating the broadband market was that the Federal Trade Commission can force ISPs to uphold their net neutrality promises."

The goal remains little to no oversight of some of the least-competitive and most anti-competitive American companies in any industry. What could possibly go wrong?

It's worth reiterating that even if the FTC wins this case, the agency remains a pale echo of the FCC when it comes to holding giant ISPs accountable. The FTC lacks rule-making authority, is already over-extended, and can only hold an ISP accountable if it can clearly prove the ISP engaged in "unfair or deceptive" behavior. That's something that's particularly problematic on the net neutrality front when anti-competitive behavior is routinely hidden behind bogus claims of routine network management.

Granted if you really like growing monopolies running amok, this plan should be right up your alley. But if you realize that removing already pretty tepid oversight of an uncompetitive and broken telecom industry could cause vast irreparable harm to consumers and smaller businesses alike, then this is a case you most certainly should be keeping an eye on.


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  • icon
    Lord Lidl of Cheem (profile), 10 May 2018 @ 6:44am

    I wish they would put AT&T's lobbying arm in charge of Brexit - they are clearly experts in the 'cake & eat it' outcome that Mrs May clearly desires.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2018 @ 7:14am

    so the FCC and FTC have failed us average citizens; why were our expectations of them so erroneous in the first place?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 May 2018 @ 8:48am

      Re:

      "why were our expectations of them so erroneous in the first place?"

      IDK - Possibly due to a higher level of trust that the government enjoyed in the past?

      Maybe due to an increase in the level of awareness in the general public wrt current events?

      Or both ...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2018 @ 8:01am

    For someone who insists the law is the law is the law, Richard Bennett seems to be heavily gunning for people trying to fight it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 May 2018 @ 12:17pm

      Re:

      Richard Bennett is a liar and potentially a corporate shill. Nothing he says has any other purpose than to push the narrative big telcos and ISPs want to paint.

      It would be extremely funny if it wasn't sad since he's so bad at it. It takes less than five minutes to find hard data and quotes that directly contradict anything he says because he just spouts stuff off hoping you don't know what he's talking about and/or won't take the time to look it up. And when you post those quotes and data in reply to his comments, he just shuts up and never replies after that.

      Whatever they might be paying him to shill for them is WAY too much. Even if it's nothing.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 May 2018 @ 12:39am

        Re: Re:

        Not completely accurate. Richard Bennett is completely on board with the destruction of net neutrality, but his actual allegiances are the same as any bog standard Techdirt troll. On the topic of NN he'll whine about how ISPs are constantly regulated - but when a judge denies copyright trolls the right to fleece ISP subscribers for subpoenas, and he'll scream about how lawless and unregulated those ISPs are. (And to think, he once insisted that the fight against NN isn't about piracy, oh no, absolutely not.)

        But you have my agreement that Bennett is absolutely atrocious at convincing people that he's right. The problem is that he's still firmly attached to whatever bottomless resource pit that his Sugar Daddy Ajit Pai has yet to be weaned from.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 May 2018 @ 6:18am

          Re: Re: Re:

          but his actual allegiances are the same as any bog standard Techdirt troll

          I used to think that until I found out he runs his own site that has no other purpose than to breathlessly agree with ISPs on anything net neutrality related. It's really quite disgusting and filled with more lies and word twisting than even his comments on here.

          He calls it a forum but it's really a blog with no comments section. There is no forum board and no way for any one to post comments (registered or otherwise). All this despite a big huge button labeled "Join the discussion" that doesn't actually take you anywhere where you could join the discussion. Seriously, if you click on it it just takes you to a bunch of blog posts that make it appear that other users are making comments, despite there being no way to actually do so. And that supposed 'discussion' never once disagrees with him. It all is breathless agreement with him.

          reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 10 May 2018 @ 8:20am

    The backlash is building and it's strong. Keep doing it ATT!

    Part of me thinks they are shooting their feet and we'll all end better after the war is over and the dust settles.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2018 @ 8:26am

    funny how this is top priority for AT&T, yet it was one of the main reasons Pai used as an excuse that Net Neutrality was protected by the FTC and not a problem if the FCC repealed it!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 May 2018 @ 8:54am

      Re:

      It's almost as if these two bit ass clowns do not event communicate with one another about their conniving and under handed dealings before they feebly attempt to execute said plans.

      How embarrassing for the rest of us to endure this disgusting mess they have created.

      reply to this | link to this | view in chronology ]


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