• by Wendy Davis , Staff Writer @wendyndavis, April 10, 2017

Last year, a federal appellate court blocked the Federal Trade Commission from prosecuting AT&T for allegedly duping customers by selling them unlimited data only to throttle them after they used between 3 and 5 GB a month.

A three-judge panel of the 9th Circuit Court of Appeals said in its ruling that the FTC couldn't proceed against AT&T because the agency lacks jurisdiction against common carriers.

The most notable aspect of the case is that the alleged deception occurred between 2011 and 2014 -- before mobile broadband was considered a common carrier service. The judges suggested in the ruling that AT&T was a "common carrier" during that time because it provided traditional telephone service.

The FTC is now asking for a new hearing in front of at least 11 of the 9th Circuit's judges. The agency -- backed by lawmakers, the FCC and various public interest groups -- argues that the decision leaves the FTC unable to act when broadband carriers violate their promises to consumers.

Last week, the FTC filed supplemental papers calling attention to the recent repeal of broadband privacy rules. Those regulations, passed last year by the FCC, would have prohibited carriers from drawing on subscribers' Web-browsing history to serve them ads, without their opt-in consent. Lawmakers revoked the rules under the Congressional Review Act, which means the FCC isn't allowed to replace the privacy rules with substantially similar ones in the future.

The FTC says in its newest papers that the repeal of the privacy rules highlights the "enforcement gap" created by the earlier ruling in the throttling dispute.

AT&T late last week responded by arguing that Congress was aware of the earlier decision when it scrapped the privacy rules.

"It is not appropriate for the FTC to decry a supposed 'gap' created by Congress or to ask this Court to close it," AT&T says in a letter to the 9th Circuit.

It's worth noting that despite the company's arguments to the court, AT&T has publicly said the FTC will be able to police broadband carriers if the net neutrality rules are repealed. "The adequacy of the FTC to police privacy has never been questioned before this fact-free debate," senior executive vice president Bob Quinn wrote late last month on the company's public policy blog.