Filing an amicus brief with the Ninth Circuit Court of Appeals, Verizon Communications joined Cox Communications and two other major cable companies Monday in backing the Federal Trade Commission’s (FTC’s) claim that the “common carrier exemption”—which prohibits the FTC from regulating the activities of common carriers—should not extend to the non-common carrier activities of telecommunications carriers. Echoing arguments laid out by the FCC in its amicus brief filed earlier this month, Verizon and the cable companies warned the Ninth Circuit en banc panel that “the important regulatory goals that are at stake in this case cannot be achieved if the en banc court accepts the [three-judge] panel’s interpretation . . . and any perceived regulatory gap is filled by a patchwork of well-intentioned, yet inexperienced federal, state and local agencies.”

Last month, the Ninth Circuit granted the FTC’s petition for an en banc rehearing of the court’s previous ruling that the FTC, pursuant to the common carrier exemption, lacked authority to pursue charges that AT&T misled wireless subscribers by “throttling” or slowing the data transmission speeds of customers who purchased unlimited data plans. The case at hand originated in 2014, a year before the FCC reclassified fixed and wireless broadband access services as common carrier telecommunications services under Title II of the 1934 Communications Act. Filing suit against AT&T, the FTC contended that broadband and other non-common carrier services provided by common carriers such as AT&T are not subject to the common carrier exemption. Although a California district court ruled initially in the FTC’s favor, the three-judge appellate panel ruled last August for AT&T, reasoning that “the plain language of the common carrier exemption casts the exemption in terms of status, contrary to the FTC’s position.”

While admitting that their apparent alignment with the FCC and the FTC against AT&T “might seem surprising,” Verizon and the cable companies told the court that, “on closer inspection . . . this position aligns with the companies’ desire to reinstate a predictable, uniform and technology-neutral regulatory framework that will best serve consumers and businesses alike.” The joint filers also emphasized that they “do not doubt AT&T’s commitment to the protection of its consumers, and they take no position on the merits of the FTC’s underlying allegations that AT&T’s practices were unfair or deceptive.” Maintaining that “pipelines, trucking companies and airlines are common carriers as well,” the joint filers reminded the court that they “are not the only companies with common carrier divisions or services that might have some or all of their organization (including their non-common carrier activities) rendered exempt from FTC jurisdiction if the [three-judge] panel’s reading . . . prevails.” If the en banc panel decides to uphold the court’s previous ruling and thus prevent the FTC from “coherently” regulating the non-common carrier activities of such companies, the joint filers warned: “an alphabet soup of federal actors—from the FCC to the FRA to the FAA to the FMSCA to the FERC to the CFPB to many others—might develop inconsistent consumer protection rules in each of the industries they regulate.”