FTC Highlights Deep-Sixing of FCC Privacy Rules in Bid for 9th Circuit Rehearing

In support of its request for an en banc rehearing of a Ninth Circuit Court of Appeals panel decision in FTC v. AT&T over the jurisdictional boundaries between the Federal Trade Commission’s (FTC) and Federal Communications Commission’s (FCC) authority over phone companies, broadband providers, and other common carriers, the FTC sent a letter to the Court yesterday highlighting the Congressional joint resolution signed into law by President Trump that eliminates the broadband and voice privacy rules in a November 2016 FCC order.

The FTC argues in its letter to the Ninth Circuit that because the FCC privacy rules never became effective and are now null and void, they cannot mitigate the regulatory gap discussed by the FTC in its petition.” The FTC suggests that the regulatory gap is unlikely to be filled by the FCC in the future because the Congressional Review Act prevents reissu[ing] the privacy rules in substantially the same form’ or issu[ing] new rules that are substantially the same’ as the disapproved rule unless such action is authorized by a newly enacted law. 5 U.S.C. § 801(b)(2).”

Whether this argument is likely to help persuade the Ninth Circuit to grant the FTC’s request for an en banc rehearing is unclear. This filing also follows an op-ed earlier this week by the FTC’s acting Chairman, Maureen Ohlhausen and FCC Chairman Ajit Pai, stating that the FCC’s prior party-line vote to strip the Federal Trade Commission of its jurisdiction over Internet broadband providers was a mistake,” and that the two agencies would work together to restore the FTC’s authority to police ISP’s privacy practices.” We will keep you posted on updates.