FTC Petition for 9th Circuit Rehearing in AT&T Case Has Good Shot, Say Some
The FTC has a good shot at getting an en banc rehearing by the 9th U.S. Circuit Court of Appeals, said several experts. A three-judge panel in August threw out the commission's case against AT&T Mobility for inadequately informing customers of its data-throttling program (see 161014003 and 1608290032). Experts, some of whom filed amicus briefs backing the FTC, said the 9th Circuit has a track record of providing such rehearings, though they said it's murkier how the full court would decide.
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The court does en banc reviews "maybe somewhat more readily" than other circuits and for high-tech issues with some frequency, said William McGeveran, an associate professor at the University of Minnesota Law School. He filed an amicus brief (in Pacer) with Georgetown University Law Center professor Paul Ohm, supporting the FTC's petition. "We have a more compelling argument for en banc reconsideration than usual because the panel really wasn't well briefed and their opinion didn't really consider the much broader ramifications of the decision and that's really what the en banc device is for," said McGeveran. He said the brief before the three-judge panel and its opinion "focused on a relatively narrow technical statutory interpretation matter." He said he doesn't know about these judges in particular, but there are very smart lawyers who aren't even aware how significant the FTC's role is in safeguarding privacy and data security.
Public interest groups and other communications experts have said the panel decision (in Pacer) could prevent the FTC from regulating a broad range of companies such as Comcast, Google and Verizon that offer both common carrier and non-common carrier services. They said companies like Amazon, Apple, Facebook and Twitter might even engage in common carrier activity just to evade FTC oversight. The FTC didn't comment.
“Those venturing guesses at court outcomes often look foolish in hindsight ... but I'd say that the FTC has a good chance at getting a re-hearing, and a decent shot at getting the panel reversed," emailed Doug Brake, telecom policy analyst at the Information Technology and Innovation Foundation. He said the full court may hear the case since both the FTC and the FCC said the court "misunderstood the jurisdictional boundary" between the agencies. "On the substance, the panel's reading of what it means to be a common carrier 'subject' to the Communications Act was quite rigid -- if they would look at the FCC’s statutes, it is quite clear that firms are only subject to treatment as common carriers insofar as they are engaged in common carrier activities. There is a clear way for the court to change course, and doing so would save some policy headaches.”
Harold Feld, senior vice president with Public Knowledge, which also filed an amicus brief (in Pacer) backing the FTC petition, said he thinks the commission has a "very good chance" to get a shot in front of the full court, partially based on the support from several organizations. Several consumer and public interest groups, the FCC and Sen. Richard Blumenthal, D-Conn., are supporting the trade commission (see 1610250031).
The 9th Circuit has granted en banc reviews and even reversed initial decisions, said Feld. He pointed to a case brought by the Minority Television Project, which owns KMTP-TV San Francisco, against the FCC, which banned political ads that run on public radio and TV stations (see 1211290066, 1312030031 and 1204130058). In 2012, a panel ruled the ban was unconstitutional, but an en banc review the following year reversed that decision. He also noted another 9th Circuit en banc review last year that reversed an earlier panel decision that allowed the takedown of a controversial anti-Islam video on YouTube (see 1505190042 and 1411260045).
An en banc review certainly has "a history of being willing to reverse a panel opinion," but it can also affirm or modify the panel decision in the FTC v. AT&T Mobility case, said Feld. For instance, would Google, which owns Google Fiber, have immunity for its search engine activities? "Even if the en banc court decides to affirm, it's very likely to, at least, address the concerns that have been raised about the breadth of the decision," he said. "There's good reason to think that the FTC would win in a rehearing or, at the very least, it's important enough that you need to do more to ... somehow explain or limit the appellate court's decision.”
Even if the 9th Circuit doesn't grant the FTC's petition for a rehearing, McGeveran said the commission still has options. "This wouldn't necessarily have to be the last word," he said. The FTC could continue to litigate in other courts or work through its own administrative procedures, but it would be better if the 9th Circuit did review en banc, he added.