Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page1 of 23 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 FEDERAL TRADE COMMISSION, 9 Plaintiff, For the Northern District of California United States District Court 10 v. 11 AT&T MOBILITY LLC, 12 Defendant. ___________________________________/ No. C-14-4785 EMC ORDER DENYING DEFENDANT’S MOTION TO DISMISS (Docket No. 29) 13 14 15 The Federal Trade Commission (“FTC”) has filed suit against Defendant AT&T Mobility 16 LLC (“AT&T”), asserting that AT&T has engaged in acts or practices, in connection with the 17 marketing of mobile data services,1 that violate 15 U.S.C. § 45(a). Section 45(a), which is part of 18 the Federal Trade Commission Act of 1914 (“FTC Act”), provides in relevant part: “The 19 Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, 20 except . . . common carriers subject to the Acts to regulate commerce . . . , from using . . . unfair or 21 deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(2). 22 Currently pending before the Court is AT&T’s motion to dismiss. AT&T argues that it 23 cannot be held liable for a violation of § 45(a) because it enjoys an exemption under the statute as a 24 “common carrier[] subject to the Acts to regulate commerce.” Id. Having considered the parties’ 25 briefs and accompanying submissions, the Court hereby DENIES AT&T’s motion. 26 27 28 1 As indicated below, AT&T provides both mobile voice services and mobile data services. The FTC’s complaint concerns only the provision of mobile data services. Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page2 of 23 For the Northern District of California United States District Court 1 I. FACTUAL & PROCEDURAL BACKGROUND 2 In its complaint, the FTC alleges as follows. 3 “[AT&T] is a major retailer of smartphones and provider of wireless broadband internet 4 access service for smartphones (‘mobile data’).” Compl. ¶ 9. In 2007, AT&T was the exclusive 5 mobile data provider for the Apple iPhone. Initially, AT&T offered iPhone customers an 6 “unlimited” mobile data plan. See Compl. ¶ 10. 7 In 2010, AT&T stopped offering the unlimited mobile data plan to new smartphone 8 customers and instead has required such customers to purchase one of its “tiered” mobile data plans 9 (where customers who exceed the stated data allowance are charged for the additional data at the 10 rate set forth in the tiered mobile data plan). See Compl. ¶ 11. Old customers, however, were 11 grandfathered – in essence, to ensure that they would not switch mobile data providers. See Compl. 12 ¶¶ 12-13. 13 In July 2011, AT&T 14 decided to begin reducing the data speed for unlimited mobile data plan customers, a practice commonly known as “data throttling.” Under [the] throttling program, if an unlimited mobile data plan customer exceeds the limit set by [AT&T] during a billing cycle, [AT&T] substantially reduces the speed at which the customer’s device receives data for the rest of that customer’s billing cycle. 15 16 17 18 19 20 21 Compl. ¶ 15. The speed reductions and service restrictions in effect under [the] throttling program are not determined by real-time network congestion at a particular cell tower. Throttled customers are subject to this reduced speed even if they use their smartphone at a time when [AT&T’s] network has ample capacity to carry the customers’ data, or the use occurs in an area where the network is not congested. 22 23 Compl. ¶ 26. Moreover, “[AT&T] does not throttle its tiered mobile data plan customers, regardless 24 of the amount of data that a tiered mobile data plan customer uses.” Compl. ¶ 29. 25 26 27 28 According to the FTC, [AT&T] has numerous alternative ways to reduce data usage on its network that does not involve violating its promise to customers. One alternative would involve [AT&T] requiring existing unlimited data customers to switch to a tiered data plan at renewal. . . . Another alternative would involve [AT&T] introducing its throttling program 2 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page3 of 23 1 at renewal, with disclosures at point of sale. . . . Yet other alternatives might include limited, narrowly tailored throttling programs that are consistent with Defendants’ contracts, advertising, and other public disclosures. 2 3 4 For the Northern District of California United States District Court 5 Compl. ¶ 28. But “[AT&T’s] wireless customer agreements do not state that an unlimited mobile data plan 6 customer’s use of more than a specified amount of data is prohibited activity.” Compl. ¶ 32. Also, 7 at the time of renewal, AT&T does not tell its unlimited mobile data plan customers about the 8 throttling program. See Compl. ¶ 34. Disclosures about the throttling program have been limited – 9 e.g., in a monthly bill sent prior to renewal, in a text message, and/or in an e-mail. See Compl. ¶¶ 10 33-37 (noting that only a minority of customers were sent a text message and/or e-mail). These 11 disclosures, however, were not adequate. For example, the monthly 12 statement failed to disclose the degree to which the customers’ data speed would be reduced, and the impact that the reduced speed would have on customers’ ability to use their device. It also failed to adequately disclose that the speed reduction was due to a limit intentionally imposed by [AT&T], as opposed to general network congestion. 13 14 15 16 17 Compl. ¶ 35. Based on, inter alia, the above allegations, the FTC has brought two claims pursuant to 15 18 U.S.C. § 45(a) which prohibits, inter alia, “unfair or deceptive acts or practices in or affecting 19 commerce.” 15 U.S.C. § 45(a)(2). In Count I, the FTC asserts that AT&T’s throttling program is 20 unfair because AT&T “entered into numerous mobile data contracts that were advertised as 21 providing access to unlimited mobile data, and that do not provide that [AT&T] may modify, 22 diminish, or impair the service of customers who use more than a specified amount of data for 23 permissible activities.” Compl. ¶ 45. In Count II, the FTC maintains that AT&T has engaged in 24 deceptive conduct because it does not disclose or fails to adequately disclose that “it imposes 25 significant and material data speed restrictions on unlimited mobile data plan customers who use 26 more than a fixed amount of data in a given billing cycle.” Compl. ¶ 49. In short, the gravamen of 27 the FTC’s complaint is not AT&T’s practice of throttling per se, but AT&T’s deceptive conduct in 28 failing to disclose its throttling to certain customers. 3 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page4 of 23 1 2 II. A. 3 For the Northern District of California Legal Standard AT&T has moved to dismiss on the basis that it is exempt from § 45(a) as a “common 4 carrier[] subject to the Acts to regulate commerce.” 15 U.S.C. § 45(a)(2). In its opening brief, 5 AT&T styled its motion as one made pursuant to Federal Rule of Civil Procedure 12(b)(1), i.e., for 6 lack of subject matter jurisdiction. In its opposition, the FTC counters that the motion is 7 appropriately brought under Rule 12(b)(6), not 12(b)(1), because AT&T is challenging only “the 8 scope of the FTC’s statutory authority.” Opp’n at 2 n.1. 9 United States District Court DISCUSSION Whether the pending motion to dismiss is technically predicated on Rule 12(b)(1) or on 10 12(b)(6) is not material in this instance. Neither party has asserted that the choice of rule affects the 11 disposition of the motion. Nor can the Court divine a difference in result here. Even assuming that 12 Rule 12(b)(1) were to govern, AT&T is making a facial challenge to jurisdiction, and not a factual 13 one. See Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th Cir. 2014) (indicating that a 14 jurisdictional attack can be facial or factual; in the former circumstance, all of the factual allegations 15 in the complaint are taken as true and extrinsic evidence such as documents attached to a complaint 16 may be considered). Given such a challenge, the standard is governed essentially by a Rule 17 12(b)(6)-type inquiry. 18 While the exact procedural posture is not dispositive, the Court acknowledges that recent 19 action taken by another administrative agency, namely, the Federal Communications Commission, 20 may impact this case. More specifically, the Federal Communications Commission recently made 21 the decision to reclassify mobile data service from a non-common carriage service to a common 22 carriage service. Because this “Reclassification Order” has not yet taken effect, the Court addresses 23 first the merits of the issues raised in the parties’ initial briefs. Only after assessing the merits of 24 these issues does the Court turn to the effect of the Reclassification Order on this action. 25 B. 26 Statutory Construction As stated above, AT&T argues that it cannot be held liable for a violation of § 45(a) because 27 of an exception in the statute for “common carriers subject to the Acts to regulate commerce.” 15 28 U.S.C. § 45(a)(2). The full text of § 45(a) is as follows: 4 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page5 of 23 1 2 3 4 5 6 The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, savings and loan institutions described in section 18(f)(3) [15 U.S.C. § 57a(f)(3)], Federal credit unions described in section 18(f)(4) [15 U.S.C. § 57a(f)(4)], common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to the Federal Aviation Act of 1958 [49 U.S.C. § 40101 et seq.], and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921, as amended [7 U.S.C. § 181 et seq.], except as provided in section 406(b) of said Act [7 U.S.C. § 227(b)], from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce. For the Northern District of California United States District Court 7 8 15 U.S.C. § 45(a)(2) (emphasis added). The term “Acts to regulate commerce” is defined as the 9 Interstate Commerce Act of 1887 and the Communications Act of 1934, as well as all amendments 10 and supplements thereto. See id. § 44. When § 45(a) was first enacted as part of the FTC Act in 11 1914, “Acts to regulate commerce” meant only the Interstate Commerce Act because the 12 Communications Act had not yet been passed. 13 The Interstate Commerce Act was “[t]he first federal regulation to impose duties on common 14 carriers” and “applied to ‘any common carrier or carriers’ engaged in the railroad transportation of 15 people or property interstate.” FTC v. Verity Int’l, Ltd., 443 F.3d 48, 57 (2d Cir. 2006). “In 1910, 16 Congress passed the Mann-Elkins Act, which amended the [Interstate Commerce Act] to apply to 17 interstate telephone companies and to deem such companies common carriers.” Id. “Regulation of 18 telephone common carriers continued to rest with the [Interstate Commerce Commission] until 19 1934, when Congress passed the Communications Act of 1934.” Id.; see also Verizon Comms., Inc. 20 v. FCC, 535 U.S. 467, 478 n.3 (2002) (noting that “[f]ederal regulation in the area had previously 21 been undertaken incidentally to general interstate carrier regulation under the Interstate Commerce 22 Act”). When § 45(a) was amended in 1938, one of the amendments made was to re-define “Acts to 23 regulate commerce” to include the Communications Act. 24 The basic dispute between the parties is over the scope of the common carrier exception. 25 According to AT&T, it falls within the scope of the exception because the exception applies so long 26 as an entity has the “status” of a common carrier. In other words, under AT&T’s position, if an 27 entity has the status of a common carrier, it cannot be regulated under § 45(a) at all, even when it is 28 providing services other than common carriage services. The FTC disagrees with this interpretation 5 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page6 of 23 1 of § 45(a). According to the FTC, it is not just status that matters, but also the “activity” in question. 2 That is, the common carrier exception applies only if an entity has the status of a common carrier 3 and is actually engaging in common carriage services. Thus, under the FTC’s view, an entity can be 4 regulated under § 45(a) even if the entity is a common carrier so long as it is the entity’s non- 5 common carriage services that are being regulated. For the Northern District of California United States District Court 6 The basic issue for the Court is one of statutory construction. Statutory construction begins, 7 of course, with the language of the statute. See, e.g., Caraco Pharm. Labs., Ltd. v. Novo Nordisk 8 A/S, 132 S. Ct. 1670, 1680 (2012) (noting that statutory construction begins “‘with the language of 9 the statute itself’”); United States v. Byun, 539 F.3d 982, 991 (9th Cir. 2008) (indicating that 10 ordinary tools of statutory construction include the language of the statute, the statute’s legislative 11 history, and the “practical effects to the extent necessary to illuminate the meaning of the plain 12 language”). Here, § 45(a) carves out an exception for “common carriers subject to the Acts to 13 regulate commerce,” which includes the Communications Act. 15 U.S.C. § 45(a)(2). AT&T argues 14 that this language, on its face, weighs in its favor because: (1) AT&T is a common carrier – i.e., for 15 mobile voice services – even if it does also provide non-common carriage services such as mobile 16 data; and (2) AT&T is subject to the Communications Act, being regulated in fact not just for its 17 common carriage services (mobile voice) under Title II of the act but also for its non-common 18 carriage services (mobile data) under Title III of the act. 19 The problem with AT&T’s argument is it glosses over what is meant by “common carrier” in 20 the first place. Nowhere in the FTC Act is the term “common carrier” defined. Given that fact, the 21 Court deems it appropriate to consider what the term “common carrier” meant at the time the FTC 22 Act was enacted in 1914. Notably, that is the approach that the Second Circuit took in a decision 23 addressing the common carrier exception in § 45(a). See Verity, 443 F.3d at 57-58 (“decid[ing] to 24 give meaning to ‘common carrier’ in the FTC Act according to the ordinary sense of the word when 25 Congress used it to create the exemption”). 26 As the FTC points out, prior to the enactment of the FTC Act, an entity was deemed a 27 common carrier and regulated as such under the common law only where it was actually engaged in 28 common carriage services. For example, in Santa Fe, Prescott & Phoenix Railway Co. v. Grant 6 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page7 of 23 1 Brothers Construction Co., 228 U.S. 177 (1913), the Supreme Court noted that “[t]he great object of 2 the law governing common carriers was to secure the utmost care in the rendering of a service of the 3 highest importance to the community” and, therefore, a “common carrier in the prosecution of its 4 business as such is not permitted to drop its character and transmute itself by contract into a mere 5 bailee with right to stipulate against the consequences of its negligence.” Id. at 184-85 (emphasis 6 added). The Supreme Court added that “this rule has no application when a railroad company is 7 acting outside the performance of its duty as a common carrier.” Id. at 184-85 (emphasis added); see 8 also R.R. Co. v. Lockwood, 84 U.S. 357, 377 (1873) (stating that “[a] common carrier may, 9 undoubtedly, become a private carrier, or a bailee for hire, when, as a matter of accommodation or 11 For the Northern District of California United States District Court 10 special engagement, he undertakes to carry something which it is not his business to carry”).2 Prior to the enactment of the FTC Act, common carriers were viewed in a similar way for 12 purposes of the Interstate Commerce Act.3 For instance, in Interstate Commerce Commission v. 13 Goodrich Transit Co., the Supreme Court concluded that the Interstate Commerce Commission had 14 authority to require a system of accounting for a common carrier, even though “the accounts 15 required to be kept are general in their nature and embrace business other than such as is necessary 16 to the discharge of the duties in carrying passengers in freight in interstate commerce [e.g., 17 amusement parks]”; but the Supreme Court also indicated that those non-common carriage “affairs 18 [were otherwise] not within [the Commission’s] jurisdiction.” Goodrich Transit, 224 U.S. at 211-12 19 20 21 22 23 24 25 26 2 At the hearing, AT&T argued that, when the FTC Act was enacted, times were “simpler” in that common carriers (such as railroads) were single purpose entities that engaged in common carriage activity only. But the cases cited above show that that was not the case. For instance, a common carrier could engage in private transportation. See R.R. Co., 84 U.S. at 377 (“For example, if a carrier of produce, running a truck boat between New York City and Norfolk, should be requested to carry a keg of specie, or a load of expensive furniture, which he could justly refuse to take, such agreement might be made in reference to this taking and carrying the same as the parties chose to make . . . .”). Also, a common carrier might be involved in a completely different line of business. See, e.g., Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194, 205 (1912) (noting that a common carrier also operated two amusement parks “and in connection therewith owns, operates and derives revenue from lunch stands, merry-go-rounds, bowling alleys, bath houses, etc., and collects admission fees from people entering the parks”). 3 27 28 It is appropriate to consider the Interstate Commerce Act here for at least two reasons. First, the Interstate Commerce Act was “[t]he first federal regulation to impose duties on common carriers.” Verity, 443 F.3d at 57. Second, the Interstate Commerce Act was expressly referenced in § 45(a) at the time it was enacted. 7 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page8 of 23 1 (emphasis added); see also Kansas City S. R. Co. v. United States, 282 U.S. 760, 764 (1931) (citing 2 Santa Fe in support of the statement that “[t]here is no doubt that common carriers subject to the 3 Interstate Commerce Act may have activities which lie outside the performance of their duties as 4 common carriers and are not subject to the provisions of the Act”). 5 6 encompassed not only a “status” but also an “activity” component: An entity was deemed a common 7 carrier when it had the status of common carrier and was actually engaging in common carriage 8 services. For the Northern District of California 9 United States District Court Thus, as the FTC argues, at the time the FTC Act was enacted, the term “common carrier” Moreover, even if there were some doubt that “common carrier” was to be so understood, the 10 broader phrase used in § 45(a) for the common carrier exception must be taken into account. 11 Section 45(a) refers to an exemption for “common carriers subject to the Acts to regulate 12 commerce.” 15 U.S.C. § 45(a)(2) (emphasis added). This language can fairly be read to mean that 13 the exemption applies only when the common carrier is subject to regulation as such. Cf. Verity, 14 443 F.3d at 57 (stating that Congress created the common carrier exemption because it “did not 15 intend the FTC to enforce unfair-competition law against common carriers because the ICC already 16 regulated common carriers under the Interstate Commere Act”). As indicated by the case law 17 discussed above, an entity was subject to regulation as a common carrier only when it was actually 18 engaging in common carriage activity. AT&T’s interpretation to the contrary is not convincing 19 because in essence, AT&T asks that § 45(a) be broken into two separate inquiries: (1) Is an entity a 20 common carrier (for any purpose)? and (2) if so, is the entity subject to the Acts to regulate 21 commerce? See Reply at 4. AT&T does not explain why the Court should apply this two-part 22 disjunctive construction rather than evaluate the exemption holistically.4 23 4 24 25 26 27 28 Because of its analysis above, the Court need not entertain the FTC’s additional argument that “common carriers subject to the Acts to regulate commerce” necessarily incorporates by reference the totality of the Communications Act, which defines common carriers as turning on whether the entity is actually engaging in common carriage services. See 47 U.S.C. § 332(c)(1)-(2) (providing that “[a] person engaged in the provision of a service that is a commercial mobile service shall, insofar as such person is so engaged, be treated as a common carrier for purposes of this Act” and further that “[a] person engaged in the provision of a service that is a private mobile service shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this Act”); see also 47 U.S.C. § 153(51) (defining the term “telecommunications carrier” as “any provider of telecommunication services” and further providing that “[a] telecommunications carrier 8 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page9 of 23 1 2 with the legislative history for the FTC Act. As the FTC notes, during the 1914 congressional 3 debate over the bill that would later become the FTC Act, Representative Stevens, a manager of the 4 House bill, discussed what entities would be covered by the proposed act. Mr. Stevens stated, inter 5 alia, that every corporation engaged in commerce would come within the scope of the act: 6 8 They ought to be under the jurisdiction of this commission in order to protect the public, in order that all of their public operations should be supervised, just the same as where a railroad company engages in work outside of that of a public carrier. In that case such work ought to come within the scope of this commission for investigation. 9 .... 7 10 11 For the Northern District of California United States District Court Furthermore, a holistic interpretation of the common carrier exception is more consistent 12 [E]very corporation engaged in commerce except common carriers, and even as to them I do not know but that we include their operations outside of public carriage regulated by the interstate-commerce acts. 51 Cong. Rec. 8996 (1914) (emphasis added). 13 Although AT&T argues the purpose of the common carrier exception is to ensure that there 14 is no agency overlap in terms of regulation, it appears that the more precise purpose was to prevent 15 overlap between common carrier regulations. As the Second Circuit observed in Verity, Congress 16 created the common carrier exemption because it “did not intend the FTC to enforce unfair- 17 competition law against common carriers because the ICC already regulated common carriers under 18 the Interstate Commere Act.” Verity, 443 F.3d at 57 (emphasis added). AT&T points to nothing in 19 the legislative history suggesting that Congress intended to prevent any and all regulatory overlap 20 (as opposed to focusing on the Interstate Commerce Commission’s regulation of common carriers as 21 22 23 24 25 26 27 28 shall be treated as a common carrier under this Act only to the extent that it is engaged in providing telecommunications services, except that the [Federal Communications] Commission shall determine whether the provision of fixed and mobile satellite service shall be treated as common carriage”). Prior to March 12, 2015, the Federal Communications Commission deemed mobile data service a private mobile service, i.e., non-common carriage. See Verizon v. FCC, 740 F.3d 623, 650 (D.C. Cir. 2014) (noting that the Federal Communications “Commission has classified mobile broadband service as a ‘private’ mobile service” and therefore mobile broadband providers are not common carriers). On March 12, 2015, the Federal Communications Commission issued its Reclassification Order in which it essentially reclassified mobile data service as common carriage in nature. The Court addresses the impact of the Reclassification Order infra. 9 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page10 of 23 1 such). Indeed, it is not uncommon for any particular activity of a business to be subject to multiple 2 sets of regulations. 3 That the common carrier exception in § 45(a) requires consideration of both status and 4 activity, and not just status alone, is also supported by the tool of statutory construction which 5 counsels a court to consider a statute’s “practical effects to the extent necessary to illuminate the 6 meaning of the plain language.” Byun, 539 F.3d at 991. AT&T’s interpretation of the common 7 carrier exception would result in significant regulatory gaps. For example, as the FTC points out in 8 its brief, 9 11 For the Northern District of California United States District Court 10 12 13 AT&T’s reading of the common carrier exemption would open a giant loophole that would threaten to swallow the FTC Act. Companies engaging in de minimus common carrier activity could immunize all of their operations from FTC scrutiny. For example, internet giants that introduce a small measure of common carrier business would be shielded from the FTC’s active privacy and data security enforcement because of their “status” as a common carrier. Indeed, such a move into common carrier activities is not merely hypothetical; Google recently announced its intention to become a virtual wireless carrier. 14 Opp’n at 16; cf. Crosse & Blackwell Co. v. Fed. Trade Comm’n, 262 F.2d 600, 604-05 (4th Cir. 15 1959) (in discussing the scope of entities exempt from § 45(a) because they are subject to the 16 Packers and Stockyards Act, noting that “Congress did not anticipate that a giant steel company 17 might attempt to escape the restraint of the antitrust laws by operating a small packing plant” and 18 thus be subject to the exemption). 19 In response, AT&T contends that any such gap has not caused an adverse effect: “If the 20 FTC’s inability to regulate in these gaps were such a problem, one would imagine that Congress 21 would have stepped in at some point in the past century to address this.” Reply at 6. But this 22 argument misses the point. Congress would not need to step in if the common carrier exemption 23 were always understood to apply only when an entity is a common carrier and is engaging in 24 common carrier activity. As discussed above, that indeed appears to have been Congress’s 25 understanding at the time of the FTC Act’s enactment. In fact, that seems to have been the general 26 understanding of the common carrier exemption even years later, as noted by AT&T’s predecessor 27 during a 1937 congressional hearing. See To Amend the Federal Trade Comm’n Act, House 28 Committee on Interstate and Foreign Commerce Hearing, 75th Cong., 1st Sess. on H.R. 3143 (Feb. 10 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page11 of 23 1 18-19, 1937) (AT&T’s predecessor company proposing to Congress that § 45(a) be amended to 2 include the following proviso: “provided that common carriers under the latter act are excepted as 3 common carriers under this act only in respect of their common-carrier operations”; stating that 4 “[a]ll this does is to make clear that so far as the fair trade practice provisions of the Federal Trade 5 Commission Act are concerned, the exception which has always been in the act shall be preserved, 6 and by my amendment, . . . it will make clear one thing, . . . namely, that where common carriers 7 engage in activities that are not in the common carrier field, beyond the field that the Government is 8 regulating, then and in that case, they are subject to the jurisdiction of the Federal Trade 9 Commission . . . .”).5 For the Northern District of California United States District Court 10 To the extent AT&T points out that there is no actual regulatory gap here because the 11 Federal Communications Commission happens to regulate mobile data services under the 12 Communications Act – albeit as non-common carriage activity (for conduct prior to the effective 13 date of the Reclassification Order) – that is not dispositive. The point is that, under AT&T’s broad 14 interpretation of the statute, there would be regulatory gaps in many instances; AT&T has not made 15 any showing that most or even many gaps would be filled. Moreover, that there may be some 16 overlap between agency regulation is not damning in and of itself, particularly in the absence of any 17 apparent conflict with respect to agency regulation. 18 19 20 21 22 23 24 25 26 27 28 5 AT&T has argued that Congress’s decision not to adopt its predecessor’s proposed amendment weighs in its favor. The Court does not agree. Admittedly, the Supreme Court has stated that, “[w]here Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended.” Russello v. United States, 464 U.S. 16, 23-24 (1983). But that is hardly the situation here. Here, there was a proposed amendment that was never adopted into any version of the bill. Moreover, “[a]s a general rule, Congress’[s] rejection of a proposed amendment is not a significant aid in interpreting a statute passed years earlier.” United States v. Capital Blue Cross, 992 F.2d 1270, 1277 (3d Cir. 1993) (citing 21 N. Singer, Sutherland on Statutory Construction § 48.18 (5th ed. 1992)); see also Tahoe Regional Planning Agency v. McKay, 769 F.2d 534, 538 (9th Cir. 1985) (stating that “caution must be exercised in using the rejection by a legislature of proposed amendments as an aid in interpreting measures actually adopted”). There are numerous reasons why legislation may not be enacted; in addition to the realities of the political process wherein legislation may not be enacted for a multitude of disparate reasons, Congress could have made a coherent choice to not enact new legislation because it believed it was already covered by law and thus not needed. 11 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page12 of 23 1 2 Communications Commission were to assert jurisdiction over mobile data service (as a non-common 3 carriage service) because, in Count I, 4 5 6 7 8 9 10 11 For the Northern District of California United States District Court AT&T contends that there would be a conflict if both the FTC and the Federal 12 the FTC believes that slowing throughput speeds to customers on unlimited plans is an “unfair” practice that has “caused substantial injury” to consumers. By contrast, as long ago as 2008, the FCC affirmatively endorsed the use of such reduced speeds where, as here, a provider offering unlimited plans (Comcast) needed to manage traffic network: “Comcast has several available options it would use to manage network traffic without discriminating as it does. . . . Comcast could throttle back the connection speeds of high-capacity users (rather than any user who relies on peer-to-peer technology, no matter how infrequently).” The 2010 Open Internet Order likewise approved of practices involving the provision of “more bandwidth to subscribers that have used the network less over some preceding period of time than to heavier users” to reduce congestion. That order was not vacated in any respect until January 2014 (and, even then, it was vacated in part on other grounds). AT&T thus had every reason to believe during the period at issue here that conduct that the FCC preemptively approved would not later be the subject of an FTC enforcement action. 13 14 Reply at 14-15. 15 The problem with AT&T’s position is that, even though the FTC has characterized Count I 16 as implicating an unfair practice, the gravamen of the FTC’s complaint is based on AT&T’s failure 17 to disclose its throttling practice to certain customers. More specifically, in Count I, the FTC asserts 18 that AT&T’s throttling program is unfair because AT&T “entered into numerous mobile data 19 contracts that were advertised as providing access to unlimited mobile data, and that do not provide 20 that [AT&T] may modify, diminish, or impair the service of customers who use more than a 21 specified amount of data for permissible activities.” Compl. ¶ 45 (emphasis added). Thus, the FTC 22 is not arguing in the case at bar that the throttling program is unfair per se; instead it challenges 23 AT&T’s failure to disclose the practice to certain customers and afford them alternative options. 24 To the extent AT&T suggests that there could also be a conflict (either with respect to Court 25 I or even Count II, which is the claim that characterizes AT&T’s conduct as deceptive, not just as 26 unfair) because the Federal Communications Commission has also passed its own “transparency 27 rule, 47 C.F.R. § 8.3, which itself requires an ‘accurate’ disclosure,” Reply at 15, the Court sees no 28 obvious conflict between 47 U.S.C. § 8.3 and § 45(a). AT&T has pointed to no instance where a 12 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page13 of 23 1 Federal Communications Commission regulation requires conduct which would violate a FTC 2 regulation or vice-versa. See, e.g., Federal Communications Commission, In re Preserving the Open 3 Internet, 25 FCC Rcd 17905, at ¶¶ 56, 57 (stating that “[w]e believe that at this time the best 4 approach is to allow flexibility in implementation of the transparency rule” and “[w]e agree that 5 broadband providers must, at a minimum, prominently display or provide links to disclosures on a 6 publicly available, easily accessible website that is available to current and prospective end users 7 and edge providers as well as to the Commission, and must disclose relevant information at the point 8 of sale”). For the Northern District of California United States District Court 9 AT&T protests still that “common carrier” must be viewed solely in terms of status because: 10 (1) § 45(a) repeatedly uses status-based terms, such as “persons,” “partnerships,” “corporations,” 11 “banks,” “savings and loan institutions,” “credit unions,” “air carriers,” and “common carrier” (as 12 opposed to common carriage) in its text; (2) § 45(a) does contain one activity-based exemption 13 which uses markedly different language, thus demonstrating that the lack of activity-based language 14 with respect to the common carrier exemption is telling; and (3) there is case law to support its 15 position. But ultimately, none of these arguments is availing. 16 AT&T’s first argument has facial appeal but is problematic based on the understanding of 17 the term “common carrier” at the time of the FTC Act’s enactment in 1914 and Congress’s intent to 18 encompass that understanding. 19 AT&T’s second argument is based on the 1958 amendment to § 45(a). Prior to the 1958 20 amendment, § 45(a) included an exemption related to the Packers and Stockyards Act. More 21 specifically, that exemption existed for “persons, partnerships, or corporations subject to the Packers 22 and Stockyards Act, 1921.” 52 Stat. 111 (1938). In 1958, that exemption was amended to read 23 “persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards 24 Act, 1921.” 27 Stat. 1749 (1958) (emphasis added). AT&T argues that this is evidence that the 25 26 27 28 13 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page14 of 23 1 Packers/Stockyards exemption used to be a status-based exemption but then, in 1958, was changed 2 into an activity-based exemption.6 3 The Fourth Circuit, however, has explained that this change to the Packers/Stockyards 4 exemption was not consequential. More specifically, in Crosse & Blackwell, the Fourth Circuit 5 noted that, pre-amendment, it was 6 clear that the substance of what was intended to be withdrawn from the controls of the Federal Trade Commission and subjected to regulation by the Secretary of Agriculture were the businesses of the stockyards and packers as those industries were known and understood at the time. Doubtless the Congress did not anticipate that a great steel company might attempt to escape the restraints of the antitrust laws by operating a small packing plant, taking the position that it was engaged in the business of a packer and was thus subject, in its steel business, to regulation only by the Secretary of Agriculture under the Packers and Stockyards Act, or that a canner of miscellaneous food items might avoid compliance with the general antitrust laws solely by reason of the fact that it used a relatively small quantity of meat as an ingredient in some of its products, for it did not expressly provide in 1921 that one engaged in parallel business, or in peripheral activity, would be subject to regulation as a packer under the Packers and Stockyards Act to the extent that he was engaged in that business and subject to regulation under the general antitrust laws to the extent he was engaged in other businesses. Whatever doubt there may have been on that scope has been removed by the [1958 amendment]. But if we look to the language of the Act prior to the 1958 amendment, in the light of the purposes the Congress in 1921 clearly intended to serve, there seems no doubt that it was never intended that relatively inconsequential activity which might be classified as meat packing should insulate all of the other activities of a corporation from the reach of the Federal Trade Commission. 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 The language of the Act is susceptible to the construction that one engaged in the business of processing meats for sale is subject to regulation in that business as a packer under the Packers and Stockyards Act, while any other business in which he may be engaged 20 21 22 23 24 25 26 27 28 6 AT&T asserts that the legislative history for the Packers and Stockyards Act shows that, before the 1958 amendment, § 45(a)’s Packers/Stockyards exemption was status based. While the legislative history for the act does use the terms “status” and “activity,” that terminology must be viewed in context. The critical point in the legislative history was that the Packers and Stockyards Act was being amended to limit application to certain kinds of packers. See H.R. Rep. No. 85-1048, at 6 (1957) (noting that the amendment to § 45(a) of the FTC Act was to reflect the amendment made in the Packers and Stockyards Act; for the amendment to the latter, “jurisdiction is predicated not upon the mere fact that a person may fall within the definition of a packer but upon the type of activity carried on by such person[;] [t]he bill limits the jurisdiction of the act and, therefore, of the Secretary of Agriculture to those commodities specifically listed in paragraph (1): ‘livestock, meats, meat food products, livestock products in unmanufactured form, poultry, or poultry products’” and “[a]ctivities of packers with respect to all other products will fall under the jurisdiction of the Federal Trade Commission”). 14 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page15 of 23 1 is subject to the general restraints of that antitrust laws, and that jurisdiction to enforce the antitrust laws was left in the Federal Trade Commission, except insofar as the businesses of the stockyard and packing industry, as such, were removed from the jurisdiction of the Federal Trade Commission. 2 For the Northern District of California United States District Court 3 4 Crosse & Blackwell, 262 F.2d at 604-05 (emphasis added). “A literal interpretation of the 5 exemption . . . must be laid aside for it is ‘plainly at variance with the policy of the legislation as a 6 whole,’ and if held to grant a more extensive exemption than the [Agriculture] Secretary’s 7 regulatory power would produce an absurd result.” Id. at 606; see also Foxgord v. Hischemoeller, 8 820 F.2d 1030, 1034 (9th Cir. 1987) (noting that “‘departure from the literal construction of a statute 9 is justified when such a construction . . . would clearly be inconsistent with the purposes and policies 10 of the act in question’”). Hence, if anything, the legislative history of the Packers and Stockyards 11 exemption as explained in Crosse & Blackwell supports the FTC’s argument. According to the 12 Fourth Circuit, the pre-amendment language – which like the common carrier exemption contained 13 no activity-based language (merely covering businesses “subject to” the 1921 Packers and 14 Stockyards Act) – nonetheless encompassed activity, not just status. 15 As for the third argument that case law supports its status argument, AT&T relies primarily 16 on Federal Trade Commission v. Miller, 549 F.2d 452 (7th Cir. 1977).7 Miller, however, is not 17 binding authority on this Court, and the basic reasoning of Miller is not persuasive. The Seventh 18 Circuit stated in Miller that it 19 need not decide whether the FTC is correct in its statement that the non-carrier activities of a common carrier do not fall within the scope of the § [46] exemption.[8] Assuming that to be correct, it does not follow that a corporation engaged solely in carrier activities steps outside the exemption whenever those activities are not of a type ordinarily regulated by the [Interstate Commerce Commission]. The 20 21 22 23 24 25 26 27 7 To the extent AT&T cites other cases, those cases do not, as Miller did, address the exact issue of whether the term “common carrier” should be understood to include both a status and activities component. See, e.g., Nat’l Fed’n of the Blind v. Fed. Trade Comm’n, 303 F. Supp. 2d 707, 710-11, 714-15(D. Md. 2004) (noting that the FTCA applies only to corporations, not nonprofit organizations, such that there is effectively a nonprofit exemption under the act; concluding that a for-profit professional telemarketer that solicits charitable contributions for a nonprofit could be held liable under the FTCA because “an entity’s exemption from FTC jurisdiction is based on that entity’s status, not its activity”) (emphasis omitted; citing Miller). 8 28 Section 46 is another provision in the FTC Act. It gives the FTC authority to investigate but, like § 45(a), also includes an exemption for common carriers. 15 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page16 of 23 1 regulatory approach articulated by [the FTC], while it may be a desirable one, is not the one Congress appears to have adopted. Before the Wheeler-Lea Amendment [in 1938], [§ 45(a)(1)] of the Act had declared unlawful and [§ 45(a)(6)] of the Act had empowered the Commission to prohibit, only “unfair methods of competition in commerce.” The Amendment inserted in both those subsections the additional words “and unfair or deceptive acts or practices in commerce.” It did not, however, alter in any way the exemption provisions of the latter subsection or of [§ 46]. Thus, as amended [§ 45] declares unlawful both anticompetitive practices and unfair or deceptive acts or practices and, further, empowers the Commission to prevent persons, except regulated common carriers (and certain others), from engaging in the conduct declared unlawful. There is no conceivable basis for holding that the exception applies to one type of forbidden conduct but not the other. The Commission’s argument must therefore fail, and, having failed with respect to [§ 45(a)(6)], it necessarily fails with respect to [§ 46(a)] as well. 2 3 4 5 6 7 8 9 For the Northern District of California United States District Court 10 Id. at 458 (emphasis added).9 11 Instead, the Court finds more persuasive the reasoning of the district court in Federal Trade 12 Commission v. Verity International, 194 F. Supp. 2d 270 (S.D.N.Y. 2002), and the Second Circuit’s 13 observation on appeal. There, the FTC sued the defendant with regard to its billing practices. The 14 defendant argued that it was a common carrier – indeed, had a license from the Federal 15 Communications Commission to be a facilities- or retail-based international common carrier – and 16 therefore exempt from the reach of § 45(a). The court rejected the defendant’s contention, 17 explaining that 18 its argument presupposes that once the FCC licenses an entity as a common carrier, it is a common carrier for all purposes and thus entirely beyond the reach of the FTC. But that premise is fundamentally erroneous. An entity that is a common carrier may engage in a broad range of activities, some integral to its functions as a common carrier and some entirely extraneous to them. Even where Congress commits regulation of common carrier activities to a particular agency, it would make little sense to exempt a carrier’s extraneous activities from laws of general application affecting the broad sweep of American business. 19 20 21 22 23 24 25 9 26 27 28 The Miller court also questioned the FTC’s contention that “Congress contemplated and intended a perfect correlation between the end sought (avoidance of inter-agency conflict) and the means adopted (the exemption) so that there would be no gap in the regulatory framework.” Miller, 549 F.2d at 458. According to the court, “[s]ubsequent legislative history [in particular, on banks] tends to refute that assumption.” Id. But even if Congress did not intend a perfect correlation, it is unlikely that Congress intended for there to be significant gaps. 16 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page17 of 23 1 Id. at 274; see also Computer & Comms. Industry Ass’n v. FCC, 693 F.2d 198, 210 n.59 (D.C. Cir. 2 1982) (stating that “[i]t is clear that an entity can be a common carrier with respect to only some of 3 its activities[;] [i]n this opinion the term ‘common carrier’ will be used to indicate not an entity but 4 rather an activity as to which an entity is a common carrier”). The Verity district court 5 acknowledged Miller but found it to be “inconsistent with [the] common sense proposition that the 6 carrier exemption to the FTC Act should be construed no more broadly than its purpose – to avoid 7 interfering with the regulation of carriers by agencies to which their regulation is committed.” Id. at 8 275. For the Northern District of California United States District Court 9 On appeal, the Second Circuit disagreed with the district court’s analysis in part, concluding 10 that “common carrier” as used in the FTCA had to be “defined by reference to the common law of 11 carriers and not to the Communications Act, even though the common law definition does not 12 meaningfully differ from the Communications Act definition for purposes of this appeal.” Verity, 13 443 F.3d at 57. However, the Second Circuit went on to indicate that it agreed with the district court 14 that “common carrier” was predicated on both an entity’s status and its activity, and not just status 15 alone. More specifically, the court noted that 16 22 [t]he notion of some indelible common carrier “status” under the Communications Act is highly questionable. See Southwestern Bell Tel. Co. v. FCC, 19 F.3d 1475, 1481 (D.C. Cir. 1994) (explaining that “whether an entity in a given case is to be considered a common carrier or a private carrier turns on the particular practice under surveillance” and that the FCC “is not at liberty to subject [an] entity to regulation as a common carrier” if the entity is acting as a private carrier for a particular service”); see also NARUC II, 533 F.2d at 608 (“It is at least logical to conclude that one can be a common carrier with regard to some activities but not others.”); In re Audio Commc’ns, Inc., 8 F.C.C.R. 8697, 8698-99, P12 (1993) (“[A] single firm that is a common carrier in some roles need not be a common carrier in other roles.”). 23 Id. at 60 n.4; cf. Crosse & Blackwell, 262 F.2d at 604-05 (interpreting pre-1958 version of Packers 24 and Stockyards Act exemption as activity based). 17 18 19 20 21 25 As a final point, the Court notes that two other considerations counsel in favor of the FTC’s 26 interpretation over AT&T’s. First, because the FTC Act is a remedial statute, it should be read 27 broadly and its exemptions narrowly. See, e.g., United States v. An Article, 409 F.2d 734, 741 n.8 28 (2d Cir. 1969) (stating that the FTCA has a remedial purpose – i.e., to protect the public, “‘that vast 17 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page18 of 23 1 multitude which includes the ignorant, the unthinking and the credulous’”); In re Smith, 866 F.2d 2 576, 581 (3d Cir. 1989) (noting that “[s]tatutes prohibiting unfair trade practices and acts have 3 routinely been interpreted to be flexible and adaptable to respond to human inventiveness[;] [i]n 4 construing section 5 of the Federal Trade Commission Act relating to unfair trade practices, for 5 example, the Supreme Court determined that the Act was to be both broad in sweep and flexible in 6 application”); cf. City of Edmonds v. Wash. St. Bldg. Code Council, 18 F.3d 802, 804 (9th Cir. 1994) 7 (stating that “[c]ourts generously construe the Fair Housing Act” and, “[a]s a broad remedial statute, 8 its exemptions must be read narrowly”). For the Northern District of California United States District Court 9 Second, the FTC’s interpretation – although not necessarily entitled to Chevron deference 10 (which the FTC disavowed at the hearing) – should still be afforded some deference pursuant to 11 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (holding that a non-controlling agency opinion 12 may carry persuasive weight, depending on “the thoroughness evident in its consideration, the 13 validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors 14 which give it power to persuade, if lacking power to control”); see also United States v. Mead Corp., 15 533 U.S. 218, 234 (2001) (stating that “an agency’s interpretation may merit some deference 16 whatever its form”). In this regard, the Court notes that, contrary to what AT&T argues, the FTC 17 has seemed to consistently take the position that the common carrier exemption should be viewed 18 both in terms of status and activity, and not just status alone. See, e.g., FTC Reauthorization, 19 Hearing Before the Subcommittee on Consumer Affairs, Foreign Commerce and Tourism, S. Hrg. 20 107-1147, at 28 (July 17, 2002) (statement of Hon. Sheila F. Anthony, FTC) (noting that 21 “Defendants often argue that the exemption protects every action of a company that enjoys common 22 carrier status” and that “[t]he Commission firmly believes that only the common carrier activities of 23 such companies are exempted, but litigating this issue, as the Commission has been repeatedly 24 forced to do, raises the cost of pursuing enforcement actions”), available at 25 http://www.gpo.gov/fdsys/pkg/CHRG-107shrg91729/pdf/CHRG-107shrg91729.pdf; Prepared 26 Statement of the Fed. Trade Comm’n, 2003 WL 21353573, at *19 (June 11, 2003) (statement before 27 the Subcommittee on Commerce, Trade and Consumer Protection to support the FTC’s 28 reauthorization request for fiscal years 2004 to 2006) (stating that, “[w]hile common carriage has 18 For the Northern District of California United States District Court Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page19 of 23 1 been outside the FTC’s authority, the agency believes that the FTC Act applies to non-common- 2 carrier services of telecommunications firms, even if the firms also provide common carrier 3 services”); see also FTC Amendments of 1977 and Oversight, Hearings before the Subcommittee on 4 Consumer Protection and Finance, 95th Cong., 1st Session on H.R. 3816, 1767, and 2483 (1977) 5 (letter from FTC to Rep. Eckhardt) (asking for an amendment to the FTC Act, not “to extend the 6 Commission’s jurisdiction into those areas that are subject to regulation by other federal agencies, 7 but rather, as we explained in our formal statement, . . . intend[ing] to close a ‘regulatory gap’ under 8 exceptions in Sections 5 and 6 of the FTC Act as interpreted in a recent court decision [i.e., 9 Miller]”) (emphasis added). To the extent AT&T argues that the FTC has taken a different position 10 in other lawsuits, see Mot. at 13, the Court does not agree. In those cases, the FTC argued that an 11 entity did not meet the status requirement of common carrier but it did not disavow that there was an 12 activity component as well. 13 Accordingly, for all of the reasons stated above, the Court rejects AT&T’s contention that 14 the common carrier exemption in § 45(a) is predicated on status alone, and rather agrees with the 15 FTC that § 45(a) can be applied to an entity that has the status of a common carrier so long as what 16 is being regulated is the entity’s non-common carriage services. 17 C. Reclassification Order 18 After initial briefing was completed in this case, the parties notified the Court that the 19 Federal Communications Commission had made the decision to reclassify mobile data service from 20 a non-common carriage service to a common carriage service. The Reclassification Order was 21 released on March 12, 2015, but apparently will not go into effect until it is published in the Federal 22 Register. See Docket No. 45, at 1 n.2 (FTC’s sur-reply). The Reclassification Order expressly states 23 that reclassification will “apply only on a prospective basis.” Reclassification Order at 134 n.792. 24 The FTC argues that the Reclassification Order will have minimal impact on this case 25 because it will apply only prospectively. In other words, the FTC focuses on the fact that, through 26 this case, the Court can still address AT&T’s past misconduct which allegedly violates § 45(a). In 27 response, AT&T contends that the FTC is missing the point – i.e., once the Reclassification Order 28 goes into effect, then the FTC will no longer have jurisdiction to pursue this case, even if limited to 19 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page20 of 23 1 past conduct by AT&T. See, e.g., Docket No. 46, at 1 (AT&T sur-reply) (stating that “[t]he issue is 2 whether a change to an agency’s jurisdiction takes effect immediately and divests the agency of 3 authority to prosecute past conduct that is the subject of pending litigation”) (emphasis in original). 4 5 Court is not persuaded by AT&T’s argument. Hughes Aircraft Co. v. United States, 520 U.S. 939 6 (1997), provides guidance as to how this issue should be resolved. For the Northern District of California 7 United States District Court The FTC disputes that § 45(a) is a jurisdictional statute. But, even assuming that it is, the In Hughes, the plaintiff-whistleblower brought a qui tam action against a company for 8 violation of the False Claims Act (“FCA”). Before 1986, qui tam suits were barred if the 9 information on which they were based was already within the government’s possession. In 1986, 10 there was an amendment to the FCA which partially removed that bar. The question for the 11 Supreme Court was whether that amendment applied retroactively to the plaintiff’s suit. The 12 Supreme Court held that the 1986 amendment was not retroactive and therefore the plaintiff’s action 13 was barred. See id. at 941-42. 14 One of the arguments made by the plaintiff in favor of retroactivity was that the 1986 15 amendment was “jurisdictional, and hence . . . an exception to the general Landgraf presumption 16 against retroactivity.” Id. at 950. The Supreme Court noted first that “[t]he fact . . . courts often 17 apply newly enacted jurisdiction-allocating statutes to pending cases merely evidences certain 18 limited circumstances failing to meet the conditions for our generally applicable presumption against 19 retroactivity, not an exception to the rule itself.” Id. at 951. The Court then went on to note that 20 [a]pplication of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’ Present law normally governs in such situations because jurisdictional statutes ‘speak to the power of the court rather than to the rights or obligations of the parties.’” 21 22 23 24 25 26 27 Statutes merely addressing which court shall have jurisdiction to entertain a particular cause of action can fairly be said merely to regulate the secondary conduct of litigation and not the underlying primary conduct of the parties. Such statutes affect only where a suit may be brought, not whether it may be brought at all. The 1986 amendment, however, does not merely allocate jurisdiction among fora. Rather, it creates jurisdiction where none previously existed; it thus speaks not just to the power of a particular court but to the substantive rights of the parties as well. Such a 28 20 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page21 of 23 1 statute, even though phrased in “jurisdictional” terms, is as much subject to our presumption against retroactivity as any other. 2 3 4 Order, could be deemed a change in tribunal (i.e., because enforcement with respect to mobile data 6 would be delegated to the Federal Communications Commission instead of the FTC and this Court 7 would have jurisdiction only in the former instance), the fact remains that substantive rights are 8 affected by that change as well. As the FTC explains out in its sur-reply: 10 11 For the Northern District of California Here, even if the change to the common carrier exception, resulting from the Reclassification 5 9 United States District Court Id. (emphasis in original). 12 According to AT&T, the FCC is poised to sanction AT&T for its throttling program. FCC action is not, however, a substitute for the relief sought by the FTC. The FCC is not authorized to seek refunds for injured consumers, and its enforcement authority is limited to conduct going back one year. 47 U.S.C. § 503(b)(6). AT&T’s throttling program has been in effect for more than three years, and has, over the course of that time, inflicted economic harm on millions of customers. 13 14 FTC Sur-Reply at 5 n.5 (emphasis added). This impairment of substantive rights (and AT&T’s 15 liability) is comparable to that in cases such as Matthews v. Kidder, Peabody & Co., 161 F.3d 156, 16 157, 166 & n.17 (3d Cir. 1998) (holding that amendment to Private Securities Litigation Reform 17 Act, which eliminated securities fraud-based RICO claims, was not retroactive; also indicating that 18 there be no retroactivity for, e.g., an amendment that reduced the statute of limitations under RICO 19 or that eliminated treble damages under RICO), and Mabary v. Home Town Bank, N.A., 771 F.3d 20 820, 826 (5th Cir. 2014) (stating, that before the amendment to the Electronic Funds Transfer Act, 21 the plaintiff “had a cause of action based upon [the defendant’s] alleged actions, but afterward she 22 would not” and “the amendment thus ‘may be seen as destroying a cause of action and impairing a 23 party’s rights’”). As in Matthews, the applicable limitation period would effectively be shortened 24 given the Communications Act’s one-year limitations period. Moreover, as in Mabary, the remedy 25 of refunds to injured consumers sought by the FTC (but not available to the Federal 26 Communications Commission) would be impaired. 27 28 The authority that AT&T cited in its papers and at the hearing is unavailing. For example, in Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996), the Ninth Circuit simply indicated that deprivation of 21 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page22 of 23 1 judicial review in the immigration context (more specifically, judicial review of deportation orders 2 involving aliens convicted of firearms offenses) merely affected the power of the court and not the 3 rights or obligations of the parties. See id. at 398-99 (noting that, “[a]s a general rule, we presume 4 that statutes affecting substantive rights or obligations apply prospectively only” and that “[t]his 5 presumption applies when a new statute impairs rights a party possessed when he acted, increases a 6 party’s liability for past conduct, or imposes new duties with respect to transactions already 7 completed”; adding that “[a] jurisdictional statute usually takes away no substantive right but simply 8 changes the tribunal that is to hear the case” – such statutes “speak to the power of the court rather 9 than to the rights or obligations of the parties”) (emphasis added; internal quotation marks omitted). For the Northern District of California United States District Court 10 As for Southwest Center for Biological Diversity v. United States Department of Agriculture, 11 314 F.3d 1060 (9th Cir. 2002), there, the plaintiff brought suit after failing to get a response to a 12 request for information pursuant to the Freedom of Information Act (“FOIA”). While the action was 13 pending, Congress enacted the 1998 Parks Act, which included a provision allowing for a 14 withholding of information in response to a FOIA request. The district court applied that provision, 15 which led the plaintiff to argue on appeal that the district court had given impermissible retroactive 16 effect to the Parks Act provision. The Ninth Circuit disagreed, rejecting the plaintiff’s contention 17 that the Parks Act provision impaired a right it possessed when it acted because it had a right to the 18 information when it filed its suit and then lost that right by application of the exemption. See id. at 19 1062. The court explained: “[T]he ‘action’ of the [plaintiff] was merely to request or sue for 20 information; it was not to take a position in reliance upon existing law that would prejudice the 21 [plaintiff] when that law was changed.” Id. The Ninth Circuit also noted that “application of the 22 exemption furthers Congress’s intent to protect information regarding threatened or rare resources of 23 the National Parks” and thus “[t]his case . . . presents one of the many situations in which courts 24 appropriately apply the law in existence at the time of their decision.” Id. Here, the action taken by 25 the FTC is not comparable to a mere FOIA request; what is at stake is not simply a request for 26 information, but substantive rights directly affecting financial interest. In this case, the FTC took a 27 substantive position in reliance upon existing law that would prejudice it, as well as the public on 28 22 Case3:14-cv-04785-EMC Document54 Filed03/31/15 Page23 of 23 1 whose behalf it acted, when that law was changed – and notably, not by Congress directly but rather 2 by a sister agency. 3 4 For the foregoing reasons, the Court denies AT&T’s motion to dismiss. Contrary to what AT&T argues, the common carrier exception applies only where the entity has the status of common 6 carrier and is actually engaging in common carrier activity. When this suit was filed, AT&T’s 7 mobile data service was not regulated as common carrier activity by the Federal Communications 8 Commission. Once the Reclassification Order of the Federal Communications Commission (which 9 now treats mobile data serve as common carrier activity) goes into effect, that will not deprive the 11 For the Northern District of California CONCLUSION 5 10 United States District Court III. FTC of any jurisdiction over past alleged misconduct as asserted in this pending action. This order disposes of Docket No. 29. 12 13 IT IS SO ORDERED. 14 15 Dated: March 31, 2015 16 _________________________ EDWARD M. CHEN United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 23