AT&T's Title II Tap Dance Fails To Derail FTC Throttling Lawsuit
from the Schrodinger's-carrier dept
Back in 2010, AT&T eliminated the company's unlimited data plans and began offering users only plans with usage caps and overage fees. While AT&T did "grandfather" existing unlimited wireless users at the time, it has been waging a not-so-subtle war on those users ever since in the attempt to get them to switch to more expensive plans. That has included at one point blocking video services from working unless users switched to metered plans (one of several examples worth remembering the next time someone tells you net neutrality is a "solution in search of a problem").AT&T also switched some unlimited users to its metered plans without user consent, something the carrier received a whopping $700,000 FCC fine for in 2012. But the telco's primary weapon against these users has been to throttle these users to speeds of 128 to 528 kilobits per second should they use more than a few gigabytes of data in the hopes they'd switch to metered but unthrottled plans. AT&T was sued for the practice by the FTC in October of last year, the agency claiming AT&T violated the FTC Act by changing the terms of customers’ unlimited data plans while those customers were still under contract, and by "failing to adequately disclose the nature of the throttling program to consumers who renewed their unlimited data plans."
As we noted previously, AT&T tried a rather amusing defense to try and tap dance away from the lawsuit. It claimed that because the FCC was now classifying ISPs as common carriers under Title II, the FTC no longer had the authority to police AT&T actions under the FTC Act. In other words, AT&T hates Title II -- except when it allows them to skirt lawsuits for bad behavior. In a twenty-three page ruling (pdf), Judge Edward Chen says the law is "unambiguously clear" that only AT&T wireless voice, not wireless data, was classified as common carrier when the lawsuit was filed last fall:
"Contrary to what AT&T argues, the common carrier exception applies only where the entity has the status of common carrier and is actually engaging in common carrier activity."In other words, no, AT&T can't have its cake (claim to loathe Title II with every shred of its being) and eat it too (run to Title II and common carrier protections when it suits it).
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: fcc, ftc, net neutrality, throttling, title ii
Companies: at&t
Reader Comments
Subscribe: RSS
View by: Time | Thread
AT&T and "free" upgrades.
[ link to this | view in thread ]
Is that the right metric?
um... that's between 1-5mbit - which by my standards (as a DSL customer) is pretty damn good still ;)
[ link to this | view in thread ]
Re: Is that the right metric?
[ link to this | view in thread ]
Re: Re: Is that the right metric?
[ link to this | view in thread ]
Question: FCC or FTC
Walmart has a new phone plan through T-mobile. Unlimited everything for $40. There's small text (but no *) that it's only 3G for a Gig or 2. No mention of 2G. Basically, they're offering Unlimited 2G, w/ a temp bump up to 3G, without saying it's really Unlimited 2G* (* being limited G3). They just say it's Unlimited.
Should I report this to the FCC, FTC or both? It's clearly deceptive. & may or may not be (depending on how you look at it) a case of throttling. It's definitely a bait & switch.
[ link to this | view in thread ]
Re: Question: FCC or FTC
AT&T got in trouble by changing the fine print after the contract was signed and without letting the other party know.
[ link to this | view in thread ]
Re: Question: FCC or FTC
They also have some plans that are indeed limited to 1GB or 2GB and stop (with no overages).
I don't think I've ever seen them say it's "unlimited" without also making it clear that once you hit your "cap" it does throttle down.
[ link to this | view in thread ]
Re: Re: Question: FCC or FTC
[ link to this | view in thread ]
Re: Question: FCC or FTC
The FCC is more concerned with the actual operation of communications systems than they are with problems related to sales & marketing.
[ link to this | view in thread ]