The FTC and FCC have long monitored consumer protection issues, and we can expect more joint efforts in the future. Pursuant to a Memorandum of Understanding (“MOU”) signed on November 16, 2015, the two agencies have publicly announced their intention to “formalize the existing cooperation between the agencies . . . [on] consumer protection efforts.”
The MOU provides that the two agencies will “continue to work together to protect consumers from acts and practices that are deceptive, unfair, unjust and/or unreasonable.” Among other things, this means that the agencies will: (1) coordinate agency initiatives; (2) consult with each other on investigations or actions that implicate the other agency’s jurisdiction; (3) conduct joint meetings that include discussion of marketplace practices; and (4) collaborate on consumer and industry outreach efforts.
The MOU also clarified how the agencies viewed their respective jurisdictions. For example, the MOU provides that the “scope of the common carrier exemption in the FTC Act does not preclude the FTC from addressing non-common carrier activities engaged in by common carriers.” As an example, the FTC noted that it has authority to enforce statutes such as the Fair Credit Reporting Act over common carriers. Likewise, the FCC has authority over activities engaged in “by non-common carriers for and in connection with common carrier services.” The MOU provides that where both agencies have jurisdiction, the FTC and FCC will (1) engage in joint enforcement actions and (2) share data regarding consumer complaints. Practically speaking, this means that companies who provide products or services that rely on and/or use wireline, wireless, cable, and Internet technologies should consider the guidance and enforcement history of the two possible cops on the beat.
Back in 2003, the FTC and FCC executed a similar memorandum of understanding relating to telemarketing enforcement issues, and both agencies have since conducted enforcement efforts in the telemarketing space. Following this MOU, we can expect to see increased collaboration between the two agencies on consumer protection issues. Importantly, the MOU suggests that the FTC will continue to enforce its authority over common carriers, notwithstanding the common carrier exemption in Section 5 of the FTC Act. Indeed, in April 2015, a district court agreed with the FTC in denying AT&T’s motion to dismiss an FTC complaint on grounds of lack of jurisdiction. On the heels of that order and the released MOU, FTC efforts over common carriers are likely to increase. Common carriers and other businesses should otherwise be mindful of these collaborative efforts between the FTC and the FCC when engaging with consumers.
