Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—N.D. Cal.: FTC, AT&T to address how FCC Order will affect litigation, (Mar 2, 2015)

By Greg Hammond, J.D.

In the FTC’s “throttling” suit against AT&T Mobility, the parties entered a stipulated request for further limited briefing regarding AT&T’s motion to dismiss, in light of the Federal Communications Commission’s recent Open Internet Order, which now applies to fixed and mobile broadband. The federal district court in San Francisco approved the stipulated request, allowing the parties to file briefs on what effect, if any, the FCC’s order should have on the case (FTC v. AT&T Mobility LLC, February 27, 2015, Chen, E.).

The FTC filed a complaint against AT&T in October 2014, alleging that the company failed to adequately disclose to customers on unlimited data plans that, if they reached a certain amount of data use in a given billing cycle, AT&T would reduce or “throttle” their data speeds, in some cases up to 90 percent. The suit charged that AT&T violated the FTC Act by changing the terms of customers’ unlimited data plans while those customers were still under contract, and by failing to adequately disclose the nature of the throttling program to consumers who renewed their unlimited data plans.

The FCC adopted its Open Internet Order on February 26, 2015, which bans broadband providers from: (1) blocking access to legal content, applications, services, or non-harmful devices; (2) impairing or degrading lawful Internet traffic on the basis of content, applications, services, or non-harmful devices; and (3) favoring some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind.

According to the stipulated request, the FTC is required to file its sur-reply by March 2, and AT&T is required to file its sur-sur-reply by March 5.

Attorneys: David C. Shonka for the FTC. Michael K. Kellogg (Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.) for AT&T Mobility LLC.

Companies: AT&T Mobility LLC

Cases: ConsumerProtection CaliforniaNews