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article imageAT&T claims Title II status to avoid FTC data throttling suit

By James Walker     Jan 11, 2015 in Technology
AT&T is attempting to use its status as a common carrier mobile voice provider to overcome a ruling by the FTC that would prevent it from throttling the mobile data speeds of its "unlimited" customers.
Even customers who supposedly have uncapped amounts of LTE data face speed throttling restrictions once they have consumed over 5GB in a month. The Federal Trade Commission says that this is not fair and have started a lawsuit against the company.
But AT&T are now attempting to bring their status as a mobile voice provider of calls into the equation. Whereas mobile broadband is not a "common carrier service" — similiar to utility status — mobile calls is. Common carrier services are regulated by the Federal Communications Commission (FCC), not the FTC.
AT&T is claiming that because of the common carrier status of its mobile voice decision, the FTC cannot take action against the mobile data aspect of the business, rendering the lawsuit void. They justify the claim using Section 5 of the FTC's own act, exempting common carriers from its jurisdiction: “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."
Yet back in October AT&T agreed to pay $105 million to refund customers subject to alleged bill cramming and being charged for unauthorised premium text message services. This was the result of another lawsuit against the company, started by the FTC.
AT&T have not directly answered a request by ArsTechnica to explain why it is contesting this case but not the October one. An FTC spokesperson said "We can't comment since the case is in active litigation" and no formal response has yet been filed in the court proceeding.
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