AT&T Defends Unlimited Data Throttling, Says FTC Can’t Stop It

The Federal Trade Commission cannot stop AT&T from throttling unlimited data customers, says AT&T. The carrier claimed in a motion to dismiss an FTC lawsuit that the FTC has no jurisdiction over AT&T’s data service because of the company’s status as a common carrier.

Previously reported by the Inquisitr, the lawsuit against AT&T began early in the fall with the FTC suing AT&T for misleading customers in regards to the unlimited data plans that it sold to customers. The lawsuit claims that customer’s data was throttled when a certain level of data was reached. According to the Federal Trade Commission, the throttling was deceptive, claiming that some customers saw a 90 percent decrease in speed due to the throttling. The FTC also stated that AT&T used the tactic to retain longtime customers by offering the unlimited plan, yet provide near dial up speed in some instances.

AT&T is not the only company being targeted for unfair handling of its mobile data speeds. Back in July, theInquisitr reported that Verizon was facing similar charges. In that case, the FCC was concerned over the inequality of data speeds from one unlimited data customer to another.

The FTC noted in the lawsuit that unlimited data plan should mean what it says, reported Android Authority.

“AT&T promised its customers ‘unlimited’ data, and in many instances, it has failed to deliver on that promise. The issue here is simple: ‘unlimited’ means unlimited.”

AT&T’s argument to dismiss the lawsuit centers around the FTC not having jurisdiction over mobile broadband data. AT&T is classified as a common carrier, like the utility service of a traditional wired telephone network, which are under the Federal Communications Commission’s jurisdiction. The FTC’s October 2014 lawsuit against AT&T applied to mobile broadband, which is not a common carrier service. However, AT&T claims that mobile voice’s common carrier status prevents the FTC from taking action against the cellular data portion of its business.

“AT&T plainly qualifies as a ‘common carrier’ for purposes of Section 5 because it provides mobile voice services subject to common-carrier regulation under Title II of the Communications Act. The fact that AT&T’s mobile data services are not regulated as common-carrier services under the Communications Act is irrelevant. The text, structure, history, and purpose of Section 5 leave no doubt that its common-carrier exemption turns on an entity’s ‘status’ as a common carrier subject to [an Act to regulate commerce],’ not its ‘activities subject to regulation under that Act.'”

“The FTC cannot rewrite the statute to expand its own jurisdiction.”

In AT&T’s filing for the case, it pointed to previous statements made by the FTC commissioners stating its lack of jurisdiction over the non-common portions, like mobile internet, reported Ars Technica.

“In 2002, an FTC commissioner stated that the Section 5 exemption hinders its ability to regulate ‘business activities of telecommunications firms [that] have now expanded far beyond common carriage,’ such as ‘Internet services,’ and urged Congress to repeal the exemption so the agency would not be ‘forced to’ ‘litigat[e] this issue’ in court. In 2003, the FTC informed a House subcommittee that the exemption ‘hamper[s] the FTC’s oversight of the non-common-carrier activities” of common carriers. And in November 2011, FTC Commissioner J. Thomas Rosch acknowledged the strong arguments that ‘constrain[s]’ the agency’s jurisdiction over mobile data. The FCC’s decision not to classify data services as common carriage, Commissioner Rosch explained, ‘does not necessarily mean that the service is therefore subject to regulation by… the FTC.’ ‘[W]e get our jurisdiction directly from Congress… not from another agency.'”

For now AT&T’s case could be won on throttling data but may face new rules from the FCC that will make AT&T and other internet service providers pay by having to fall under net neutrality rules.

The proposed change would bring ISPs under Title II to impose net neutrality rules that ban blocking, throttling, and paid prioritization.