• by Wendy Davis  @wendyndavis, May 26, 2016

A group of AT&T users have asked a trial judge for permission to immediately appeal his decision to send their battle over data throttling to arbitration.

The users argue that authorizing an immediate appeal will speed the conclusion of the lawsuit. "Even if plaintiffs could cost-effectively arbitrate individually, significant resources would be saved by taking the appeal now," the consumers say in papers filed last week with U.S. District Court Judge Edward Chen in the Northern District of California.

The battle stems from AT&T's 2011 decision to throttle subscribers with "unlimited" smartphone data. That move also is at the center of a lawsuit brought against AT&T by the Federal Trade Commission; that case is currently pending in federal court.

From 2011 until 2015, AT&T allegedly throttled more than 3.5 million customers who exceeded monthly allotments of 3GB or 5GB, depending on their phones, according to the FTC. The company recently revised its throttling practices and now only slows down customers who exceed 22 GB in a month. AT&T also now only throttles those users when the network is congested.

The consumers who sued AT&T alleged that the company duped them by selling "unlimited" plans, but throttling people after they hit a monthly cap.

Earlier this year, Chen granted AT&T's request to send the case to arbitration. He ruled that the wireless consumers who are suing AT&T all signed contracts that call for arbitration of disputes on an individual basis. The consumers can still proceed with individual arbitrations, but doing so often is prohibitively costly.

The consumers now say they want the 9th Circuit Court of Appeals to review Chen's decision. "Plaintiffs cannot arbitrate on a classwide basis under AT&T’s arbitration clause, which requires each plaintiff to arbitrate separately and individually, which likely would be impracticable for each plaintiff given the complexity and cost of arbitrating this case," they say in their court papers.

AT&T is expected to respond to the motion by June 2.