On February 26, 2018, the U.S. Court of Appeals for the Ninth Circuit issued an en banc decision in FTC v. AT&T holding that the Federal Trade Commission Act’s “common carrier” exemption is activity-based, reversing the panel’s decision that the exemption is status-based, which would have opened a large enforcement gap for telecommunications companies like AT&T. This is an important decision in terms of FTC jurisdiction: it means that the FTC can and will continue to regulate common carriers to the extent that they provide non-common-carrier services, such as mobile internet services.

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