November 18, 2015

FTC and FCC Agree to Coordinate Law Enforcement Efforts

Holland & Knight Regulatory Litigation Blog
Anthony E. DiResta | Brian J. Goodrich

This week, the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) entered into a Memorandum of Understanding (MOU), formally announcing that the two agencies would coordinate their law enforcement efforts concerning consumer protection issues. Both agencies also agreed to work together to protect consumer data and consumer privacy, ending a turf battle in the wake of the FCC's decision earlier this year to classify internet service providers as common carriers and remove those entities from the FTC's jurisdiction. In the MOU, both agencies acknowledged that each has independent authority to police actions by common carriers.

The FCC and FTC agreed to share intelligence and engage in joint enforcement actions where appropriate. The agencies agreed to coordinate and consult on actions and investigations that implicate their respective jurisdictions and to hold regular meetings to review and exchange information with respect to new marketplace practices. The agencies also agreed to share consumer complaint information.  As a result of this agreement, the FCC will have access to the FTC's Consumer Sentinel Network—the massive online database of consumer complaints submitted to the FTC—and will be able to contribute to the database. This MOU continues and enhances the previous MOU between the agencies, which went into effect in 2003.

Earlier this year, when it classified the Internet as a common carrier service, the FCC potentially limited the FTC's jurisdiction to conduct law enforcement actions dealing with privacy and data security issues stemming from online and mobile practices. The FTC Act contains an exemption known as the Common Carrier Exemption, which gives the FCC exclusive authority over common carriers. The new MOU, however, states that the agencies do not believe that the FTC's Common Carrier Exemption precludes the FTC from addressing non-common carrier conduct by common carriers, which would include Internet service providers.

The FCC and FTC have worked together in the past on law enforcement issues, along with other federal and state regulators. Earlier this year, the two agencies engaged in an enforcement action dealing with "cramming" suits brought against wireless companies in the past year.  Cramming refers to unauthorized, third-party charges passed along to mobile customers through their phone bills. 

As a result of this MOU, companies operating within industries regulated by both the FTC and FCC should expect the level of collaboration between the agencies to continue.

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