AT&T tries to side step FTC Throttling

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FTC Throttling - no jurisdiction

AT&T tries to dismiss FTC Throttling lawsuit

Could it be a case of out of the frying pan and into the fire?  AT&T is trying to dodge the FTC throttling lawsuit by claiming it is a common carrier.  AT&T has released a statement claiming that it is clearly a “common carrier” under Title II and does not fall under the FTC’s jurisdiction.  The lawsuit first came to light in October (here).  FTC throttling lawsuit details below..

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.

The FTC noted:

“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 take on this is that the FTC has no jurisdiction over mobile data and that the FTC is reaching way beyond its authority

“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.”

This is a sticky wicket for at least a couple of reasons I can think of.

Firstly, the FCC will have no qualms about picking the mantel if the FTC fails to substantiate its jurisdiction.  The FCC will simply pick up the lawsuit where the FTC left off.  The best outcome for AT&T is the gain a little time.

Secondly this could have repercussions on the Net Neutrality front as the FCC have hinted they are likely to come down on the Title II side of the debate.  AT&T can’t argue for Title II Common Carrier jurisdiction on one hand and then argue against it on another.  Or can they?

More Here… [Inquisitor.com]

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