Hide Techdirt is off for the long weekend! We'll be back with our regular posts tomorrow.

Schrodinger's Carrier: AT&T Is/Is Not A Common Carrier Depending On Who's Looking For What Reason

from the nice-dance-moves dept

While any respectable company can be good at PR and legal bullshitting, cable and phone companies, having navigated and built their pampered duopoly empire over a generation of regulatory capture, are exceptionally good at it. And among broadband and cable operators, nobody is better at bullshit (or worse at it, depending on where your interests lie) than AT&T. Whether it’s AT&T’s claim that gutting all state consumer protections will result in magic networks of tomorrow, or claiming that acquiring T-Mobile would create jobs and magically improve competition, AT&T’s a master at trying to convince the government (and press and public) that up is down and that snow is piping hot.

The latest gem from AT&T comes as the company is under fire by the FTC for throttling the company’s “unlimited” data after customers reach 5 GB of usage (regardless of whether the network is even congested). AT&T has been waging a quiet war on these unlimited customers for years in the hopes of getting them on capped plans, at one point going so far as to block Apple FaceTime from working unless users give up unlimited data. In a motion to dismiss (pdf) an FTC lawsuit over the practice, AT&T tries to argue that because only wireless voice has common carrier status under Section 201(b) of the Communications Act of 1934 (aka Title II), the FTC can’t technically tell AT&T what to do when it comes to throttling 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 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.?”…”The FTC cannot rewrite the statute to expand its own jurisdiction.”

In short, AT&T is arguing that because it’s classified as a common carrier under the Communications Act, the company is exempt from FTC jurisdiction according to Section 5 of the FTC Act. Or even more to the point, AT&T is using the same Title II classification it breathlessly claims to loathe as a way to dodge a lawsuit for being misleading. Except, as we’ve highlighted recently, the FTC just got done imposing the biggest fine the government has ever given out for AT&T’s aiding and protecting of crammers and scammers, using authority granted under Title II. AT&T didn’t make a single peep about the FTC’s authority in that instance.

AT&T doesn’t seem too interested in expanding on its logic here. Jon Brodkin at Ars Technica asked AT&T about its position, and the telco absolutely refused to clarify on the record:

“We?ve asked AT&T why it accepted the FTC?s jurisdiction in the text messaging case but not the data one, and the company said it would provide a response today. (The FCC was also involved in that case and invoked its authority over common carriers despite never classifying text messaging as a common carrier service?AT&T did not object to that, either, TechDirt wrote at the time.)…AT&T did not directly answer our question but pointed to a statement the company made on the day of its cramming settlement.”

The statement AT&T points to offers no further illumination of the company’s logic. What’s AT&T thinking? With legal pressure mounting, the jig was up in the case of cramming, and after a decade in which AT&T likely made billions off of the scams, even a record $105 million fine was small potatoes. Throttling and manipulating data to make an extra buck though? There’s still potentially billions to be made being sneaky and obnoxious there, which is why AT&T’s changing its tune and putting on its very best tap dancing shoes to flit between, over and under common carrier law and FCC/FTC jurisdictional distinctions.

AT&T lawyers likely want FCC jurisdiction here so the company can fight the throttling charges under the larger umbrella of the net neutrality fight alongside Comcast and Verizon. Back in October 2014, the FCC sent AT&T a Letter of Inquiry investigating AT&T’s throttling of “unlimited” users, and the agency is contemplating a Notice of Apparent Liability (read: fine) for violating FCC transparency rules. But at the same time AT&T is telling the FTC only the FCC has authority over the company, AT&T lawyers are telling the FCC mobile data can’t be treated as a common carrier service. Sweet dance moves, dude.

In short, that’s an awful lot of legal tap dancing just so AT&T can pretend limited user connections are “unlimited,” but again, with billions in potential revenues at stake, AT&T’s going to do whatever’s necessary to thwart Title II classification, where solid neutrality rules could hamstring the company’s “creativity.” As we’ve noted previously, Title II rules are only going to be a problem for ISPs that are doing something wrong, and AT&T’s a master at concocting an endless stream of awful, anti-consumer ideas, then out-maneuvering regulators when they finally wake up from their naps to realize broadband consumers are getting the shaft.

Filed Under: , , , ,
Companies: at&t

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Schrodinger's Carrier: AT&T Is/Is Not A Common Carrier Depending On Who's Looking For What Reason”

Subscribe: RSS Leave a comment
DannyB (profile) says:

If AT&T could just do its job

If AT&T could just do its job, nobody would even be talking about net neutrality. Or title ii.

Net neutrality was a principle of the internet for a long time. Because ISPs just did their job, nobody ever worried about enshrining net neutrality into law. Now that ISPs won’t do their job, it is important to make net neutrality (which was the status quo) the law of the land.

What is their job?

To deliver packets. Period. Route packets closer to their destination. Don’t ‘inspect’ the packets. Don’t modify the packet’s content. Don’t route it to some alternate destination. Don’t change the delivery priority of packets — UNLESS the network is congested.

Another free clue: if the network is regularly congested, then you need to improve your network.

Anonymous Coward says:

Re: If AT&T could just do its job

The most amusing thing about this?

This wouldn’t have ven been considered if it wasn’t for the hubris of AT&T’s rivals/colluders.

Add in the fact that AT&T are trying to claim that they already have common carrier status under the FTC, and thus the FCC can do nothing. Think on that for a minute. If a normal person claimed that the White wasn’t the ruler of the US….well, they’d be sort of right. But to then claim that your candidate’s party are the true rulers of you, and you will only listen to them?

That’s mind-numbingly stupid. AS so is AT&T for thinking that they should be double-dealing with two of the biggest ‘fuck-you-over-capacity’ entities in the US.

AT&T, Comcast and Verizon need to have their licenses to trade revoked. Period.

Violynne (profile) says:

DannyB wrote: “If AT&T could just do its job, nobody would even be talking about net neutrality. Or title ii.”

Oddly enough, it’s these very laws where AT&T was working, before the government came along and forced them to break up.

Not defending the company, but before the break-up, the government was making sure AT&T wasn’t abusing its monopoly power.

Now, the government can’t control the genie out of the bottle it released and everyone suffers because of it.

As I said before: The FCC has no bite and the FTC has no bark. Even when the FTC does bite, it barely leaves a scratch.

The FCC and FTC can’t fix these issues.

Only Congress can, and snow will be hot before this ever happens.

ltlw0lf says:

Re: Re: Re:

Except that AT&T was absolutely abusing their monopoly power pre-breakup. That’s why they got broken up.

To add to this, there was a time, in recent history, where AT&T (Ma-Bell) controlled the system with such an iron fist where it was illegal to attach anything to a phone-line that didn’t come from AT&T/Bell Labs. And AT&T prevented novel inventions (including some created by their own people) from being used for many years due to their monopoly abuse. Things like telephone answering machines, speaker phones, fax machines, and modems were outlawed and as a result, the world had to wait 60 years after their invention for Government to finally outlaw AT&T outlawing the future.

DannyB (profile) says:

Re: Re:

Not defending the company, but before the break-up, the government
> was making sure AT&T wasn’t abusing its monopoly power.

Uh, the way I seem to remember it (yes, I’m that old) is that the reason for the breakup is because AT&T was abusing its monopoly power.

After the breakup, there were a zillion inexpensive phones you could buy from everywhere in any color, size, shape, and style that you could imagine. Things customers were demanding that you couldn’t from AT&T; such as a phone handset shaped like a small toilet that you hold to your face to converse.

After the breakup, there was an explosion of FCC approved accessories you could plug in to your phone line. Like answering machines that didn’t cost over a thousand dollars. Imagine that! What was making AT&T’s answering machines high prices? An abusive monopoly perhaps?

And let’s not even talk about what happened to long distance prices after the breakup. MCI. Sprint. A thousand other wannabe long distance carriers.

John Fenderson (profile) says:

Re: Re: Re:

“After the breakup, there was an explosion of FCC approved accessories you could plug in to your phone line. Like answering machines that didn’t cost over a thousand dollars. Imagine that!”

Or, more relevant to me in the day, you could finally buy modems that directly connected to the phone system instead of those awful ones that required you to place the handset in those rubber cups. That meant that petty much immediately it became possible to connect at speeds greater than 300 baud.

Anonymous Coward says:

Seems fair

It looks like AT&T found a minor bug in the law, and even suggested a fix: s/status/activities. We shouldn’t really need the FTC or courts to come up with some weird reinterpretation of the law (which seems a bit too close to what the NSA et al. are doing). Have congress change one word, and then the FTC can file a new suit if throttling happens again.

A reasonable legislative body could propose and pass this in a few minutes. Obviously AT&T know the U.S. doesn’t have that.

DigDug says:

To be Title II or not to be Title II - that is the question, query, poser...

Here’s an idea for an interesting research idea.

Show each time that AT&T has claimed to either BE or NOT BE title II – with regards to finance, taxation, legal queries, etc..

Would be neat to see if any of the times overlapped – like answering regulatory queries as title II, while telling a judge they aren’t title II at the same time.

Hurry up FTC, just regulate all ISPs and backbone carriers Title II and be done with it.

Anonymous Coward says:

I miss the old days when dial-up internet over the phone line was protected under Title II. There used to be all kind of competition in the dial-up internet market. I could get dial-up internet for less than $10 a month.

Today I only have one ISP to choose from, because Verizon ripped out all their copper telephone infrastructure so I can’t even use dial-up internet anymore. 🙁

I want the internet to be as open and competitive as it once was in the 1990’s under Title II.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Older Stuff
04:48 Dumb Telecom Take Of The Week: Because The Internet Didn't Explode, Killing Net Neutrality Must Not Have Mattered (23)
09:37 British Telecom Wants Netflix To Pay A Tax Simply Because Squid Game Is Popular (32)
04:55 Axios Parrots A Lot Of Dumb, Debunked Nonsense About Net Neutrality (54)
10:50 NY AG Proves Broadband Industry Funded Phony Public Support For Attack On Net Neutrality (10)
06:24 The GOP Is Using Veterans As Props To Demonize Net Neutrality (22)
06:03 Telecom Using Veterans As Props To Demonize California's New Net Neutrality Law (12)
09:32 AT&T Whines That California Net Neutrality Rules Are Forcing It To Behave (11)
06:23 The New York Times (Falsely) Informs Its 7 Million Readers Net Neutrality Is 'Pointless' (51)
15:34 Facebook's Australian News Ban Did Demonstrate The Evil Of Zero Rating (18)
04:58 'Net Neutrality Hurt Internet Infrastructure Investment' Is The Bad Faith Lie That Simply Won't Die (11)
05:48 Dumb New GOP Talking Point: If You Restore Net Neutrality, You HAVE To Kill Section 230. Just Because! (66)
06:31 DOJ Drops Ridiculous Trump-Era Lawsuit Against California For Passing Net Neutrality Rules (13)
06:27 The Wall Street Journal Kisses Big Telecom's Ass In Whiny Screed About 'Big Tech' (13)
10:45 New Interim FCC Boss Jessica Rosenworcel Will Likely Restore Net Neutrality, Just Not Yet (5)
15:30 Small Idaho ISP 'Punishes' Twitter And Facebook's 'Censorship' ... By Blocking Access To Them Entirely (81)
05:29 A Few Reminders Before The Tired Net Neutrality Debate Is Rekindled (13)
06:22 U.S. Broadband Speeds Jumped 90% in 2020. But No, It Had Nothing To Do With Killing Net Neutrality. (12)
12:10 FCC Ignores The Courts, Finalizes Facts-Optional Repeal Of Net Neutrality (19)
10:46 It's Opposite Day At The FCC: Rejects All Its Own Legal Arguments Against Net Neutrality To Claim It Can Be The Internet Speech Police (13)
12:05 Blatant Hypocrite Ajit Pai Decides To Move Forward With Bogus, Unconstitutional Rulemaking On Section 230 (178)
06:49 FCC's Pai Puts Final Bullet In Net Neutrality Ahead Of Potential Demotion (25)
06:31 The EU Makes It Clear That 'Zero Rating' Violates Net Neutrality (6)
06:22 DOJ Continues Its Quest To Kill Net Neutrality (And Consumer Protection In General) In California (11)
11:08 Hypocritical AT&T Makes A Mockery Of Itself; Says 230 Should Be Reformed For Real Net Neutrality (28)
06:20 Trump, Big Telecom Continue Quest To Ban States From Protecting Broadband Consumers (19)
06:11 Senators Wyden And Markey Make It Clear AT&T Is Violating Net Neutrality (13)
06:31 Net Neutrali-what? AT&T's New Streaming Service Won't Count Against Its Broadband Caps. But Netflix Will. (25)
06:23 Telecom's Latest Dumb Claim: The Internet Only Works During A Pandemic Because We Killed Net Neutrality (49)
13:36 Ex-FCC Staffer Says FCC Authority Given Up In Net Neutrality Repeal Sure Would Prove Handy In A Crisis (13)
06:27 Clarence Thomas Regrets Brand X Decision That Paved Way For The Net Neutrality Wars (11)
More arrow