On November 16, 2015, the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) signed a Memorandum of Understanding (MOU) formalizing the existing cooperation between the agencies and outlining how the FCC and FTC will coordinate consumer protection efforts. The MOU expresses the agencies’ joint belief that enforcement actions undertaken by either agency within the scope of its jurisdiction will not preclude or limit the other agency’s authority. The existence of the MOU signals that both agencies currently intend to remain active in the consumer protection arena and underscores the importance of monitoring and reviewing compliance with both agencies’ consumer protection standards, policies, and enforcement priorities. The MOU comes at a time when both the FCC and FTC have been particularly active in consumer protection, through both rulemaking and enforcement actions.
- First, the MOU states the FTC and FCC will continue to “work together to protect consumers from acts and practices that are deceptive, unfair, unjust and/or unreasonable,” including, for example, through “coordination on agency initiatives where one agency’s action will have a significant effect on the other agency’s authority or programs” and “sharing of relevant investigative techniques and tools, intelligence, technical and legal expertise, and best practices in response to reasonable requests for such assistance[.]”
- Second, the MOU states that the agencies believe the common carrier exemption in the FTC Act does not preclude the FTC from addressing non-common carrier activities engaged in by common carriers. This comports with the position historically taken by the FTC. Further, the MOU states that any enforcement action taken by the FTC should not be perceived as a limitation on authority otherwise available to the FCC, and vice versa.
- Third, the MOU provides that the agencies will share data regarding consumer complaints to the extent feasible, including through the FCC’s access to the FTC’s secure online database of millions of consumer complaints submitted directly to the FTC, as well as to other contributors (Consumer Sentinel Network). The MOU contemplates that representatives from the agencies will hold regular meetings to exchange views on matters of common interest and responsibility.
While the FCC and FTC MOU does not alter or enhance either agency’s legal authority, the MOU underscores the agencies’ determination and public commitment to engage in coordination, consultation, and information exchange in pursuit of their respective statutory mandates. Consumer facing companies should pay careful attention to the agencies’ coordinated efforts over the coming months, while also recognizing that many other regulators at the federal and state level (including several state Attorneys General) have also increased enforcement activity in this area.