FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FEDERAL TRADE COMMISSION, No. 15-16585
Plaintiff-Appellee,
D.C. No.
v. 3:14-cv-04785-EMC
AT&T MOBILITY LLC,
a limited liability company, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted June 17, 2016
San Francisco, California
Filed August 29, 2016
Before: Richard R. Clifton, and Sandra S. Ikuta, Circuit
Judges, and William Q. Hayes,* District Judge.
Opinion by Judge Clifton
*
The Honorable William Q. Hayes, United States District Judge for the
Southern District of California, sitting by designation.
2 FTC V. AT&T MOBILITY
SUMMARY**
Federal Trade Commission Act
The panel reversed the district court’s denial of AT&T
Mobility LLC’s motion to dismiss, and remanded for an entry
of an order of dismissal in an action brought by the Federal
Trade Commission under section 5 of the FTC Act that took
issue with the adequacy of AT&T’s disclosures regarding its
data throttling plan, under which AT&T intentionally reduced
the data speed of its customers with unlimited mobile data
plans.
Section 5 of the FTC Act contains an exemption for
“common carriers subject to the Acts to regulate commerce.”
15 U.S.C. § 45(a)(2). The panel held that AT&T was
excluded from the coverage of section 5 of the FTC Act, and
FTC’s claims could not be maintained. Specifically, the
panel held that, based on the language and structure of the
FTC Act, the common carrier exception was a status-based
exemption and that AT&T, as a common carrier, was not
covered by section 5.
COUNSEL
Michael K. Kellogg (argued) and Mark C. Hansen; Kellogg,
Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington,
D.C.; David L. Anderson, Sidley Austin LLP, San Francisco,
California; for Defendant-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FTC V. AT&T MOBILITY 3
Joel Marcus (argued), Director of Litigation; Matthew M.
Hoffman and David L. Sieradzki, Attorneys; David C.
Shonka, Acting General Counsel; Federal Trade Commission,
Washington, D.C.; Evan Rose, Matthew D. Gold, and Linda
K. Badger, Federal Trade Commission, San Francisco,
California; for Plaintiff-Appellee.
OPINION
CLIFTON, Circuit Judge:
Through a practice referred to by the Federal Trade
Commission as “data throttling,” AT&T Mobility LLC
intentionally reduces the data speed of its customers with
unlimited mobile data plans.1 A throttled customer receives
data at a substantially reduced speed during a given billing
cycle once the customer’s data usage during that billing cycle
exceeds a threshold determined by AT&T. Unlimited data
plan customers are throttled without regard to real-time
network congestion.
The FTC filed a complaint against AT&T under section
5 of the FTC Act, 15 U.S.C. § 45(a), taking issue with the
adequacy of AT&T’s disclosures regarding its data throttling
program. The central issue before us is whether AT&T is
covered by section 5, which exempts, among others,
“common carriers subject to the Acts to regulate commerce.”
We conclude that AT&T is excluded from the coverage of
section 5, and that the FTC’s claims cannot be maintained.
1
The facts presented here are those alleged by the FTC in its Complaint.
We will refer to the practice by the FTC’s term, data throttling.
4 FTC V. AT&T MOBILITY
I.
AT&T offers mobile voice service and mobile data
service to its customers. Mobile data service allows
customers with smartphones to access the internet using
AT&T’s mobile data network. Customers with mobile data
service can, among other things, send and receive email, use
GPS navigation, and stream videos.
In 2007, AT&T became the exclusive service provider for
the Apple iPhone in the United States. At that time, AT&T
began offering iPhone customers an “unlimited” mobile data
plan, allowing users access to an unlimited amount of data for
a fixed monthly rate. Starting in June 2010, however, AT&T
stopped offering unlimited mobile data plans to new
customers. Since then, it has required new customers to
select one of various “tiered” data plans, under which a
customer has a set data allowance per month for a fixed
monthly rate and incurs additional charges for any data usage
in excess of the set data allowance. Customers with
preexisting unlimited data plans were grandfathered into the
new system to avoid encouraging them to switch to a
different service provider.
In July 2011, AT&T decided to begin reducing the speed
at which unlimited data plan users receive data on their
smartphones. Under AT&T’s data throttling program,
unlimited data plan customers are throttled for the remainder
of a billing cycle once their data usage during that cycle
exceeds a certain threshold. Although AT&T attempts to
justify this program as necessary to prevent harm to the
network, AT&T’s throttling program is not actually tethered
to real-time network congestion. Instead, customers are
subject to throttling even if AT&T’s network is capable of
FTC V. AT&T MOBILITY 5
carrying the customers’ data. AT&T does not regularly
throttle its tiered plan customers, no matter how much data
those customers use.
The FTC contends that AT&T failed to adequately inform
its customers of its data throttling program. It asserts two
claims against AT&T under section 5 of the FTC Act,
pursuant to which the FTC may “prevent persons,
partnerships, or corporations, except . . . common carriers
subject to the Acts to regulate commerce . . . from using . . .
unfair or deceptive acts or practices in or affecting
commerce.” 15 U.S.C. § 45(a)(2).
In Count I, the FTC asserts that AT&T’s imposition of
data speed restrictions on customers with contracts
“advertised as providing access to unlimited mobile data” and
without terms “provid[ing] that [AT&T] may modify,
diminish, or impair the service of customers who use more
than a specified amount of data” is an unfair act or practice.
In Count II, the FTC asserts that AT&T’s failure to
adequately disclose that it “imposes significant and material
data speed restrictions on unlimited mobile data plan
customers who use more than a fixed amount of data in a
given billing cycle” is a deceptive act or practice.
AT&T filed a motion to dismiss the FTC’s Complaint,
contending that it is immune from liability under section 5
because of its status as a common carrier. The FTC opposed
the motion, arguing that AT&T is not exempt from liability
for violations in connection with its mobile data service, a
non-common carrier service, because the common carrier
exemption in section 5 protects entities with the status of
common carrier only to the extent that the service in question
is a common carrier service.
6 FTC V. AT&T MOBILITY
While the motion to dismiss was pending, the Federal
Communications Commission reclassified mobile data
service from a non-common carrier service to a common
carrier service.2 In response, AT&T argued to the district
court that the FCC’s Reclassification Order, even though
prospective in application, stripped the FTC of authority to
maintain its claims against AT&T, even as to past violations.3
It is undisputed that AT&T is and was a “common
carrier[] subject to the Acts to regulate commerce” for a
substantial part of its activity, but prior to the FCC’s
Reclassification Order, its mobile date service was not
identified and regulated by the FCC as a common carrier
service.
The district court denied AT&T’s motion to dismiss. See
FTC v. AT&T Mobility LLC, 87 F. Supp. 3d 1087 (N.D. Cal.
2015). It rejected AT&T’s view of the common carrier
exemption, concluding that it applies “only where the entity
has the status of common carrier and is actually engaging in
common carrier activity.” Id. at 1104. The district court also
rejected AT&T’s argument that the FCC’s Reclassification
2
This classification was recently upheld by the D.C. Circuit in U.S.
Telecom Ass’n v. FCC, 2016 WL 3251234 (D.C. Cir. June 14, 2016).
3
The FCC has also taken issue with AT&T’s data throttling program.
On June 17, 2015, it issued a Notice of Apparent Liability, finding that
AT&T “apparently willfully and repeatedly violated the [FCC’s] Open
Internet Transparency Rule by: (1) using the misleading and inaccurate
term ‘unlimited’ to label a data plan that was in fact subject to prolonged
speed reductions after a customer used a set amount of data; and
(2) failing to disclose the express speed reductions that it applied to
‘unlimited’ data plan customers once they hit a specified data threshold.”
See In the Matter of AT&T Mobility, LLC, 30 F.C.C. Rcd. 6613 (2015).
FTC V. AT&T MOBILITY 7
Order stripped the FTC of authority to pursue its claims. Id.
at 1102–04. According to the district court, the
Reclassification Order had no effect on the FTC’s authority
over AT&T’s past alleged misconduct. Id. at 1104.
AT&T requested that the district court certify its order
denying the motion to dismiss for immediate appeal pursuant
to 28 U.S.C. § 1292(b). The district court agreed but did not
stay the proceedings before it. Following the district court’s
certification order, AT&T filed an unopposed petition for
permission to appeal, which this court granted.
II.
We review a district court’s ruling on a motion to dismiss
de novo. Colony Cove Properties, LLC v. City of Carson,
640 F.3d 948, 955 (9th Cir. 2011).4
A.
Section 5 of the FTC Act, on which the FTC relies,
contains an exemption for “common carriers subject to the
4
AT&T brought its motion pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure, stating that the issue before the district court was
“[w]hether th[e] Court possesses subject-matter jurisdiction over the
FTC’s complaint, notwithstanding the fact that 15 U.S.C. § 45(a)(2)
deprives the FTC of regulatory jurisdiction over ‘common carriers subject
to the Acts to regulate commerce.’” AT&T’s framing of its motion is
incorrect. The FTC’s statutory authority to bring claims against AT&T
has no bearing on the district court’s jurisdiction to consider the FTC’s
Complaint. See United States v. Alisal Water Corp., 431 F.3d 643, 650
(9th Cir. 2005). The district court had jurisdiction over the FTC’s claims
even if the FTC lacked the statutory authority to bring those claims.
AT&T’s motion, in other words, raises a Rule 12(b)(6) issue, not a Rule
12(b)(1) issue.
8 FTC V. AT&T MOBILITY
Acts to regulate commerce.” 15 U.S.C. § 45(a)(2). Section
5 states:
The Commission is hereby empowered and
directed to prevent persons, partnerships, or
corporations, except banks, savings and loan
institutions described in section 57a(f)(3) of
this title, Federal credit unions described in
section 57a(f)(4) of this title, common carriers
subject to the Acts to regulate commerce, air
carriers and foreign air carriers subject to part
A of subtitle VII of Title 49, and persons,
partnerships, or corporations insofar as they
are subject to the Packers and Stockyards Act,
1921, as amended [7 U.S.C.A. § 181 et seq.],
except as provided in section 406(b) of said
Act [7 U.S.C.A. § 227(b) ], from using unfair
methods of competition in or affecting
commerce and unfair or deceptive acts or
practices in or affecting commerce.
Id. “Common carrier” is not defined in the FTC Act. “Acts
to regulate commerce” are defined as the Interstate
Commerce Act of 1887, the Communications Act of 1934,
and “all Acts amendatory thereof and supplementary thereto.”
15 U.S.C. § 44. When section 5 was enacted, only the
Interstate Commerce Act was included within the term “Acts
to regulate commerce.” The Communications Act was added
to the definition of “Acts to regulate commerce” after its
passage. See Wheeler-Lea Act § 2, 52 Stat. 111 (1938).
The issue presented to us is whether the common carrier
exemption in section 5 is status-based, such that an entity is
exempt from regulation as long as it has the status of a
FTC V. AT&T MOBILITY 9
common carrier under the “Acts to regulate commerce,” or is
activity-based, such that an entity with the status of a
common carrier is exempt only when the activity the FTC is
attempting to regulate is a common carrier activity.
AT&T advocates a status-based interpretation of the
exemption, arguing that its status as a common carrier under
the Communications Act shields it from liability under
section 5 even as to non-common carrier activity. According
to AT&T, the common carrier exemption bars the FTC from
in any way regulating an entity with the status of a common
carrier under section 5, even if the common carrier engages
in non-common carrier activity.
The FTC, on the other hand, contends that the exemption
should be read as activity-based, arguing that an entity is
shielded from section 5 liability only to the extent it has the
status of a common carrier and the activity at issue is a
common carrier activity. According to the FTC, AT&T is not
exempt from section 5 liability in this case because mobile
data service was not a common carrier activity at the time of
AT&T’s alleged violations.
We conclude, based on the language and structure of the
FTC Act, that the common carrier exception is a status-based
exemption and that AT&T, as a common carrier, is not
covered by section 5.
In interpreting a statute, we first consider the language of
the statute itself. See Satterfield v. Simon & Schuster, Inc.,
569 F.3d 946, 951 (9th Cir. 2009). The plain language of the
common carrier exemption casts the exemption in terms of
status, contrary to the FTC’s position. The phrase “common
carriers subject to the Acts to regulate commerce,” 15 U.S.C.
10 FTC V. AT&T MOBILITY
§ 45(a)(2), does not contain any language suggesting that the
activities of a common carrier affect the exemption’s
application. A literal reading of the words Congress selected
simply does not comport with an activity-based approach.
See BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183
(2004) (“The preeminent canon of statutory interpretation
requires us to ‘presume that the legislature says in a statute
what it means and means in a statute what it says there.’”
(quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54
(1992)) (brackets omitted)).
The common carrier exemption is surrounded by
exemptions for “banks,” “savings and loan institutions,” and
“Federal credit unions,” all of which the FTC acknowledges
are status-based exemptions even though phrased in similar
terms as the common carrier exemption it contends is
activity-based. The fact that surrounding exemptions are
defined in terms of status suggests that “common carriers
subject to the Acts to regulate commerce” also carves out a
group of entities based on status.
In adopting the FTC’s view of the common carrier
exemption, the district court concluded that the term
“common carrier” was understood to encompass both a status
and an activity prior to enactment of the FTC Act. It based
this conclusion on a number of Supreme Court cases
identifying a regulatory distinction for common carriers
between common carrier and non-common carrier activities.
In Santa Fe, Prescott & Phoenix Railway Company v. Grant
Brothers Construction Company, 228 U.S. 177 (1913), for
example, the Court noted “the established doctrine . . . that
common carriers cannot secure immunity from liability for
their negligence by any sort of stipulation,” but explained that
“this rule has no application when a railroad company is
FTC V. AT&T MOBILITY 11
acting outside the performance of its duty as a common
carrier.” Id. at 184, 185. Likewise, in Railroad Company v.
Lockwood, 84 U.S. 357 (1873), the Court stated that an entity
is a common carrier when it carries articles as part of its
“regularly established business,” but may “become a private
carrier, or a bailee for hire, when . . . [it] undertakes to carry
something which it is not [its] business to carry.” Id. at 377.
Prior to the enactment of the FTC Act, the Supreme Court
also recognized that common carriers fell outside the scope
of the Interstate Commerce Act to the extent they engaged in
non-common carrier activities. See Kansas City S. Ry. Co. v.
United States, 282 U.S. 760, 764 (1931) (“There is no doubt
that common carriers, subject to the Interstate Commerce
Act, may have activities which lie outside the performance of
their duties as common carriers and are not subject to the
provisions of the act.”); Interstate Commerce Comm’n v.
Goodrich Transit Co., 224 U.S. 194, 211 (1912) (noting that
non-common carrier activities are not within the Interstate
Commerce Commission’s jurisdiction).
While these cases recognize a distinction between
common carrier and non-common carrier activities in the
regulation of entities with common carrier status, they do not
show that when Congress used the term “common carrier” in
the FTC Act, it could only have meant “common carrier to
the extent engaged in common carrier activity.” There is no
indication that the regulatory distinction in the cases the
district court cited is implicit in Congress’s phrasing of the
common carrier exemption.
Moreover, awareness of the potential duality of common
carriers pre-FTC Act may actually cut against the FTC’s
argument. Given the “presum[ption] that Congress is aware
of ‘past judicial interpretations and practices’ when it
12 FTC V. AT&T MOBILITY
legislates,” Bateman v. Am. Multi-Cinema, Inc., 623 F.3d
708, 720 (9th Cir. 2010) (quoting In re Egebjerg, 574 F.3d
1045, 1050 (9th Cir. 2009)), it would be expected that
Congress would have been more precise in its language if it
intended the FTC to retain regulatory authority over a
common carrier’s non-common carrier activity.
A status-based interpretation of the common carrier
exemption also derives significant support from the language
of the Packers and Stockyards exemption. Section 5 of the
FTC Act exempts “persons, partnerships, or corporations
insofar as they are subject to the Packers and Stockyards Act,
1921.” 15 U.S.C. § 45(a)(2) (emphasis added). The “insofar
as” language, clearly indicative of an activity-based approach,
undermines the plausibility of the FTC’s argument that the
exemption for “common carriers subject to the Acts to
regulate commerce” requires an activity-based interpretation.
The language of the common carrier exemption meaningfully
varies from that of the Packers and Stockyards exemption.
See S.E.C. v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003)
(“[T]he use of different words or terms within a statute
demonstrates that Congress intended to convey a different
meaning for those words. . . . Congress’s explicit decision to
use one word over another in drafting a statute is material. . . .
It is a decision that is imbued with legal significance and
should not be presumed to be random or devoid of
meaning.”).
B.
The FTC argues that the “insofar as” language in the
Packers and Stockyards exemption in section 5 of the FTC
Act, which on its face clearly indicates Congress’s intent to
adopt an activity-based approach for that exemption (and
FTC V. AT&T MOBILITY 13
therefore, by contrast, indicates that Congress intended to
retain a status-based interpretation of the common carrier
exemption) actually does not indicate such an intent. The
FTC bases this argument on the legislative history of the
Packers and Stockyards exemption, but this argument is
unpersuasive. To the contrary, our understanding of the
statute based on its plain language is bolstered by
examination of the statutory history of the Packers and
Stockyards exemption and of the FTC’s own decisions prior
to an amendment of that exemption.
As originally enacted, “persons, partnerships, or
corporations subject to the Packers and Stockyards Act” were
exempted from liability. Wheeler-Lea Act § 3, 52 Stat. 111,
111–12 (1938) (emphasis added). In 1958, Congress
amended the exemption to contain the “insofar as” language
present today. See Pub. L. No. 85-909, § 3, 72 Stat. 1749,
1750 (1958). The FTC contends that the Packers and
Stockyards exemption was always activity-based and that the
amendment was merely a part of a Congressional effort to
clarify the jurisdictional responsibilities of the FTC versus the
Secretary of Agriculture. It is unnecessary to rely on
legislative history to construe unambiguous statutory
language, see Miranda v. Anchondo, 684 F.3d 844, 849 (9th
Cir. 2012) (“If the statutory language is unambiguous and the
statutory scheme is coherent and consistent, judicial inquiry
must cease.” (quoting In re Ferrell, 539 F.3d 1186, 1190 n.10
(9th Cir. 2008))). But even considering the FTC’s arguments,
the legislative history does not bear out the FTC’s claims.
The relevant House Report stated that the bill “deals with a
reassignment of jurisdiction over unfair trade practices.”
H.R. Rep. No. 85-1507, at 3. If the amendment had merely
been a clarification of the FTC’s authority, it is unlikely that
14 FTC V. AT&T MOBILITY
the amendment would have been characterized as a
jurisdictional “reassignment.”
The House Report also suggested a status-based
understanding of existing law, stating that “[u]nder present
law, the Secretary of Agriculture has exclusive jurisdiction
over all unfair trade practices engaged in by packers.” Id. at
3. The Report noted that “the Secretary has jurisdiction over
unfair trade practices in the sale by packers of many articles
(such as sporting goods) which are either not at all or only
remotely related to agricultural products,” while “the Federal
Trade Commission does not have jurisdiction over many of
the large national grocery chains by reason of their ownership
of a 20 percent or more interest in packinghouses.” Id. at 3,
4. If the Packers and Stockyards exemption was truly
activity-based prior to its amendment, these statements would
have made little sense.
The FTC points to Food Fair Stores, Inc., 54 F.T.C. 392
(1957), in support of its argument that the Packers and
Stockyards Act and the corresponding exemption in the FTC
Act were understood to be activity-based prior to the 1958
amendment, such that the 1958 amendment is of no
consequence to its position. Although the FTC stated in Food
Fair Stores that “Congress has not removed all activities of
packers from the jurisdiction of the Federal Trade
Commission, as has been done in the Federal Trade
Commission Act in the case of banks,” the decision
nonetheless acknowledged that the FTC lacked jurisdiction
over the non-packer activities of entities subject to the
Packers and Stockyards Act. The FTC stated:
It seems clear from the language of the
[Packers and Stockyards] Act and from the
FTC V. AT&T MOBILITY 15
legislative history that Congress designedly
made the definition of packer a very broad
one. The general purpose was to regulate
certain practices of the meat packing business
in all its ramifications regardless of its
organization or unrelated activities. About the
only persons Congress seemed to exempt
were those having no packer affiliations.
Thus, an independent tanner would not be a
packer, merely because of being in the tannery
business. Nor would an independent
marketer, simply because he marketed meats,
meat food products and livestock products,
etc. But if either engaged in certain activities
traditionally connected with the packing
business, or had a designated degree of
affiliation therewith, they were included in the
definition of packer.
Id. at 405. The FTC rejected the argument that “the
jurisdiction of the Secretary of Agriculture does not extend to
those products not associated with [an entity’s] packing
business” in concluding that the grocery chain at issue fell
within the definition of “packer” and was therefore subject to
the Secretary of Agriculture’s jurisdiction. Id. at 406, 408.
In reaching that conclusion, the FTC cited its own
decision from one year earlier, Armour & Co., 52 F.T.C. 1028
(1956), in which it dismissed a complaint regarding a
packer’s advertising of oleomargarine. In concluding that the
Secretary of Agriculture had jurisdiction and the FTC did not,
the FTC traced the relevant legislative history of the Packers
and Stockyards Act, noting that it reflected Congress’s
intention to encompass a packer’s unrelated activities within
16 FTC V. AT&T MOBILITY
its general regulation of packers. Id. at 1034–36. The FTC’s
opinions prior to amendment of the Packers and Stockyards
exemption in 1958 appear more consistent with our
understanding of the statutory text than with the FTC’s
current arguments.
The FTC also fails to adequately explain what motivation
Congress would have had to amend the Packers and
Stockyards exemption in 1958 if that exemption was at that
time already understood to be activity-based. The FTC links
the amendment to Food Fair Stores, but it makes little sense
for Congress to have amended the Packers and Stockyards
Act and the FTC Act exemption if, as the FTC argues, Food
Fair Stores merely reaffirmed that the FTC retained some
jurisdiction over packers. See Johnson v. Consumerinfo.com,
Inc., 745 F.3d 1019, 1022 (9th Cir. 2014) (“When Congress
acts to amend a statute, we presume it intends its amendment
to have real and substantial effect.” (quoting Stone v. INS,
514 U.S. 386, 397 (1995))). The more likely explanation is
that Food Fair Stores took a status-based approach to the
Packers and Stockyards Act that Congress squarely addressed
in 1958 by “reassign[ing]” jurisdiction over unfair trade
practices between the FTC and the Secretary of Agriculture.
H.R. Rep. No 85-1507, at 3.
The district court relied on Crosse & Blackwell Co. v.
FTC, 262 F.2d 600 (4th Cir. 1959), to reject AT&T’s
argument regarding the significance of the 1958 amendment.
In Crosse, the Fourth Circuit concluded that Crosse &
Blackwell, a canner of soups and similar products, was not
exempt from the FTC Act simply because products
responsible for something less than three per cent of its
annual sales contained meat, thus rejecting the argument that
the company’s processing of that meat made it wholly subject
FTC V. AT&T MOBILITY 17
to regulation by the Secretary of Agriculture. It reached that
result by interpreting the pre-1958 Packers and Stockyards
Act and FTC Act exemption to be activity-based, stating 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.” Id. at 605. The opinion
explicitly acknowledged that it was rejecting “a literal
interpretation” of the FTC Act exemption, stating that it
“must be laid aside for it is ‘plainly at variance with the
policy of the legislation as a whole.’” Id. (quoting Ozawa v.
United States, 260 U.S. 178, 194 (1922)). Instead, the court
relied on its view of Congress’s “apparent purpose and
intention” in enacting the Packers and Stockyards Act,
namely to regulate “the businesses of the stockyards and of
the packers as those industries were known and understood at
the time.” Id. at 604, 606. It observed that Congress, when
it enacted the Packers and Stockyards Act, had not anticipated
that entities would acquire packing businesses in order to
wholly escape regulation by the FTC. Id. at 604–05.
According to the Fourth Circuit, Congress’s attention was
focused solely on the businesses of packers and stockyards as
such, and it would not have made sense for Congress to
“saddle[] [the Secretary of Agriculture] with responsibility in
areas far beyond the bounds of his concern.” Id. at 606.
Although Crosse supports the FTC’s interpretation of the
pre-1958 Packers and Stockyards exemption, it does not do
so persuasively. For one thing, the facts are obviously
dissimilar. AT&T’s status as a common carrier is not based
on its acquisition of some minor division unrelated to the
company’s core activities that generates a tiny fraction of its
revenue. More broadly, the Crosse decision seems to be
based on little more than the court’s own view of the most
18 FTC V. AT&T MOBILITY
effective regulatory regime in explicit disregard of the words
of the statute. But the text of a statute cannot be disregarded
in that manner. “It is not for us to rewrite the statute so that
it covers only what we think is necessary to achieve what we
think Congress really intended.” Lewis v. City of Chicago,
560 U.S. 205, 215 (2010). That is a job for Congress, not the
courts. In addition, the legislative history relied upon in the
Crosse opinion is limited to the origin of the Packers and
Stockyards Act of 1921, with no attention to the history or
language of the more directly relevant statute, section 5 of the
FTC Act. Both the relevant text and a more careful review of
that statute’s legislative history demonstrate that when that
statute exempted entities “subject to” the Packers and
Stockyards Act, as it did prior to 1958, the Packers and
Stockyards exemption was status-based. When it was
amended in that year to exempt entities “insofar as they are
subject” to the Packers and Stockyards Act, the exemption
became activity-based. The other exemptions in section 5,
including the exemption for common carriers, were not
altered, however, and they remained status-based, then and
now.
In denying AT&T’s motion to dismiss, the district court
relied on legislative history for the more pertinent statute, the
FTC Act, citing a statement made during the debate over the
House bill that later became the FTC Act. Representative
Stevens stated:
I have no doubt that there are many financial
institutions of that sort in this country which
are engaged in some industrial pursuit that
would come within the scope of this act. . . .
They ought to be under the jurisdiction of this
commission in order to protect the public, in
FTC V. AT&T MOBILITY 19
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. . . . [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 (May 21, 1914).
The FTC contends that Representative Stevens “plainly
envisioned an activity-based reading of the exception,” but
his statement was equivocal on its face. What he actually
said was “I do not know,” reflecting possible uncertainty in
Representative Stevens’s mind as to the actual scope of the
bill. Moreover, even if Representative Stevens favored an
activity-based reading of the common carrier exemption, his
statement represented the understanding of only one member
of Congress, not a powerful or persuasive indicator of
Congress’s intent. See New Eng. Power Co. v. New
Hampshire, 455 U.S. 331, 342 (1982) (“Reliance on such
isolated fragments of legislative history in divining the intent
of Congress is an exercise fraught with hazards, and ‘a step
to be taken cautiously.’” (quoting Piper v. Chris-Craft Indus.,
Inc., 430 U.S. 1, 26 (1977))). The FTC does not cite to any
other portion of the FTC Act’s legislative history to support
its position.
20 FTC V. AT&T MOBILITY
C.
The district court also concluded that the FTC’s
interpretation, though not entitled to Chevron deference,5 was
entitled to some deference under Skidmore v. Swift & Co.,
323 U.S. 134 (1944). Under Skidmore, non-binding agency
opinions may be entitled to deference, with “[t]he weight of
such a judgment in a particular case . . . depend[ent] upon the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control.” Id. at 140.
It is true, as the district court noted, that the FTC has in
recent years interpreted the common carrier exemption as
activity-based. See e.g., FTC-FCC Consumer Protection
Memorandum of Understanding, at 2 (Nov. 16, 2015);
Broadband Connectivity Competition Policy, FTC Staff
Report, at 38 (June 2007); Prepared Statement of the Fed.
Trade Comm’n, 2003 WL 21353573, at *19 (2003); FTC
Reauthorization, Hearing Before the Subcommittee on
Consumer Affairs, Foreign Commerce and Tourism, S. Hrg.
107-1147, at 28 (2002) (statement of Hon. Sheila F. Anthony,
FTC). Under such circumstances, Skidmore deference may
be appropriate. We conclude, however, that even if the
agency’s interpretation is entitled to some deference under
Skidmore, such deference is insufficient to overcome the
factors that point strongly in favor of AT&T’s position.
Given the language of the common carrier exemption and the
5
The FTC has not argued that Chevron deference is appropriate in this
case. The FTC explicitly disclaimed any reliance on Chevron before the
district court. See AT&T Mobility LLC, 87 F. Supp. 3d at 1101.
FTC V. AT&T MOBILITY 21
structure of the FTC Act, we are not persuaded by the FTC’s
interpretation.
Because we conclude that the common carrier exemption
is a status-based exemption that excludes AT&T from section
5’s coverage, we need not address AT&T’s remaining
arguments regarding overlapping regulation and the effect of
the FCC’s Reclassification Order.
III.
The common carrier exemption in section 5 of the FTC
Act carves out a group of entities based on their status as
common carriers. Those entities are not covered by section
5 even as to non-common carrier activities. Because AT&T
was a common carrier, it cannot be liable for the violations
alleged by the FTC. The district court’s denial of AT&T’s
motion to dismiss is reversed, and the case is remanded for
entry of an order of dismissal.
REVERSED AND REMANDED.