Earlier today we had learned that AT&T was filing against the FTC’s lawsuit on AT&T throttling unlimited data customers. Last year the FTC had filed a lawsuit against AT&T for using what it calls deceptive business practices by throttling customers who are on an unlimited data package, in an attempt to get the to switch to a newer plan that costs more. At least, this is what the FTC believes AT&T is doing. AT&T is filing to get that lawsuit thrown out because it states that it is a common carrier, which the FTC has no jurisdiction over according to Section 5 of the FTC Act. AT&T is also claiming that because they’re a common carrier that the FTC has no right to prevent them from throttling data, that the matter lies with the FCC.
The interesting bit is that the FTC claims mobile broadband is not a common carrier matter, which gives them the right to bring the lawsuit against AT&T for throttling their customers who are on the unlimited data plans, while AT&T is basically sticking to their guns on being a common carrier. This should give the FCC the right pursue putting mobile broadband in the same classification as mobile voice, making it a common carrier service. This is exactly what the FCC Chairman Tom Wheeler apparently wants to do and is said to be close to making some changes to the classification of broadband services, which would seem to include mobile broadband. Under this re-classification, mobile data, along with home internet would be subject to the common carrier rules under Title II of the communications Act.
AT&T is arguing that the FCC can’t re-classify mobile broadband as a common carrier service as per Section 332 of the Communications Act, which they state prohibits the FCC from classifying mobile broadband under the same Title as mobile voice. According to Ars Technica, Wheeler wants to use the re-classification of mobile broadband under Title II as a means of blocking internet service providers and mobile carriers from blocking internet traffic or throttling data as part of a new set of net neutrality rules. AT&T is arguing though that the FCC can’t use Title II to enforce new net neutrality regulations. If the FCC isn’t allowed to re-classify mobile data as a common carrier service though, that makes it a non-common carrier service, and likely gives credit to the FTC’s case on trying to regulate the mobile data throttling. It seems to us that no matter which way it goes, AT&T may end up facing a regulation they don’t want, although for now it’s still too early to tell what will happen in either case.