AT&T Files to Papers to Dismiss FTC Lawsuit Based on Title II

Posted by at 12:57 pm on January 13, 2015

In order to nullify a lawsuit brought by the Federal Trade Commission (FTC) over charges that the carrier was still throttling users on unlimited plans even when there was no network congestion, AT&T is claiming for the purposes of the lawsuit that it qualifies as a Title II “common carrier.” This is the opposite of what it has told the Federal Communications Commission (FCC) with regards to possible actual Title II regulation of broadband.

The telecommunication giant’s goal in the filing is to gain exemption from FTC scrutiny, and get the court to agree that throttling issues are part of the FCC’s job as a regulatory body. This position ignores the fact that the FCC does not — at least for now — have Title II regulatory powers over companies that offer both broadband and cellular (as AT&T does). Mobile voice is currently regulated under Title II, but the FTC lawsuit concerns only cellular data.

“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 company says. “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.'”

AT&T is not currently under Title II regulation for its broadband — and may never be in the fullest sense of the word, since the FCC is mulling over what is reported to be a modified version of Title II oversight in its latest proposal. The company does, however, see some regulation Title II for its mobile voice service, and under Title III and Section 706 of the Telecommunications Act for data — though in its filing it has omitted that the FCC’s enforcement of Section 706 was gutted in a Verizon court case.

The throttling lawsuit is being contested shortly after the FTC settled a different lawsuit with the carrier (and others) over “mobile cramming,” the practice of allowing customers to be tricked into unwanted and difficult-to-terminate ringtone or other subscription messaging services that charged subscriptions directly on the customers’ mobile bills. The carriers received a portion of the income from the services, providing them with a disincentive to help users unsubscribe.

In that action, AT&T settled with the FTC for $105 million, and agreements to warn customers more clearly of subscription charges and provide a clear path for unsubscribing. In the call for dismissal of the FTC case, the company would be unlikely to escape punishment for its throttling policies

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