FCC Disputes AT&T Structural Separation Argument in 9th Circuit FTC Authority Case
The FCC disputed an AT&T court argument that the agency could impose structural separation on common carriers to facilitate FTC regulatory authority. During a Sept. 19 en banc hearing by the 9th U.S. Circuit Court of Appeals, AT&T argued the…
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FCC's authority to require common carriers to structurally separate their operations would reduce concerns about a "regulatory gap" under the telco's status-based interpretation of the FTC's common-carrier exception, said an FCC letter (in Pacer) Friday that it asked the court to accept to correct the record in FTC v. AT&T Mobility, No. 15-16585 (see 1709180061 and 1709190025 on the argument). "AT&T argued for the first time ... that the FCC 'can and would' require carriers to form separate subsidiaries for their non-carrier activities to close the gap and thereby enable the FTC to exercise authority over such activities," said the letter from Nick Degani, the FCC's outgoing acting general counsel. "The FCC’s authority to require separation for the unprecedented purpose of facilitating FTC regulatory authority is doubtful. And the FCC has never required separation except to prevent abusive conduct by carriers with market power." AT&T didn't comment Monday.