FTC Opposes AT&T's Bid To Appeal Decision In Throttling Battle

The Federal Trade Commission says AT&T shouldn't be allowed to immediately appeal a decision that allows the agency to proceed with a lawsuit challenging the telecom's throttling practices.

“The order is unlikely to be overturned on appeal, and there are thus no advantages to an immediate appeal,” the FTC argues in motion papers filed on Thursday with U.S. District Court Judge Edward Chen in the Northern District of California. “The disadvantages, however, are substantial; this litigation could be delayed for years.”

The agency's papers come in response to AT&T's request to ask the 9th Circuit Court of Appeals to decide whether the FTC has the authority to bring an enforcement action regarding broadband service.

AT&T argues that the FTC lacks authority to bring enforcement actions against common carriers. A different agency, the Federal Communications Commission, recently reclassified broadband as a common carrier service.



Chen rejected the telecom's argument in March, noting that the FCC's reclassification decision doesn't apply retroactively. When the FTC filed suit, last October, broadband was still considered an “information” service, which isn't subject to common carrier regulations.

A&T is now asking Chen for permission to immediately appeal his order to the 9th Circuit.

The lawsuit centers on AT&T's practice of slowing the broadband speeds of mobile users who pay for unlimited data. The FTC alleged that AT&Ts policies are unfair and deceptive. “The issue here is simple: 'unlimited' means unlimited,” FTC Chairwoman Edith Ramirez said in a statement when the suit was filed.

Since 2011, when AT&T began throttling some “unlimited” users, the company has slowed down more than 3.5 million wireless customers, according to the FTC.

AT&T began throttling unlimited users soon after introducing tiered billing plans, which require customers to pay for a monthly allotment of data. The wireless provider still allows longtime users who previously had unlimited plans to avoid tiered billing, but slows some of them down after they hit a cap of either 3GB a month for customers on the 3G and HSPA+ networks or 5 GB a month for people using the LTE network.

The FTC argues that there is no reason for an immediate appeal, given that there is no “substantial ground for difference of opinion” on questions surrounding whether a reclassification order applies retroactively.

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