In a bit of legal tap-dancing, AT&T has filed a motion to dismiss the U.S. Federal Trade Commission’s (FTC) lawsuit against AT&T over data throttling on the grounds that the regulatory body lacks authority to do so. The legal grounds AT&T is basing this on is Section 5 of the FTC Act, in which a portion of that section helps draw distinction between the FTC’s jurisdiction and the U.S. Federal Communication Commission’s (FCC) jurisdiction.

AT&T argues that because of its company’s status as a common carrier in mobile voice communication, then its data service should as well. Mobile data has not traditionally fallen under the purview of the FCC, but AT&T is claiming that data should be under FCC authority.

Additionally, AT&T states that, currently, there is litigation in the works by the FCC’s Enforcement Bureau taking aim against AT&T’s data throttling. The FCC is claiming that AT&T failed to be fully transparent in its throttling practices and is actively planning to issue a Notice of Apparent Liability, which could bring statutory forfeitures. Both the FTC and FCC claim that AT&T promised customers unlimited data then throttled their speeds up to 90%.

This is an interesting position AT&T is taking with regard to claiming that its data service should be given common carrier status. Not long ago, AT&T lobbied against such a classification because then its data service could fall under the FCC’s net neutrality regulations. AT&T asking for common carrier status for its mobile data in this motion to dismiss could wind up providing the FCC with the ammo necessary in the future should AT&T attempt to fight net neutrality.

FCC Chairman Tom Wheeler has stated that he is planning to classify internet service providers (ISP), both static and mobile, as common carriers so they must follow net neutrality rules. The FCC will be voting on the matter in February.

Source: Ars Technica