AT&T defends unlimited data throttling, says the FTC can’t stop it



The Federal Trade Commission cannot prevent AT&T from throttling unlimited data customers because of AT&T’s status as a common carrier, the company claimed in a motion to dismiss an FTC lawsuit this week.

Mobile voice is a common carrier service—similar to the utility status of the traditional wireline telephone network—placing it under the Federal Communications Commission’s jurisdiction. The FTC’s October 2014 lawsuit against AT&T applied to mobile broadband, which is not a common carrier service. However, AT&T claims that mobile voice’s common carrier status prevents the FTC from taking action against the cellular data portion of its business.

AT&T pointed to a provision in Section 5 of the FTC Act which exempts common carriers from the commission’s 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,” AT&T wrote. “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.’”

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