Discord among FCC commissioners; Pai sites Kafka while O’Rielly defends AT&T’s actions
The Federal Communications Commission today announced plans to fine AT&T Mobility $100 million for misleading customers about its unlimited data plan offering.
Specifically, FCC investigators allege that AT&T “severely slowed down the data speeds for customers with unlimited data plans and that the company failed to adequately notify its customers that they could receive speeds slower than the normal network speeds AT&T advertised.”
AT&T Mobility first began offering unlimited data in 2007; that service option has since been discontinued. Customers who opted into the plan when it was available, however, are able to renew those plans.
Fast forward to 2011 when the FCC alleged that AT&T started applying a “maximum bi rate” policy that capped data speeds for unlimited customers once the subscriber reached a data threshold associated with a monthly billing cycle.
FCC Chairman Tom Wheeler said the commission’s move is in the interest of consumer advocacy.
“Consumers deserve to get what they pay for,” Wheeler said. “Broadband providers must be upfront and transparent about the services they provide. The FCC will not stand idly by while consumers are deceived by misleading marketing materials and insufficient disclosure.”
FCC reps said the commission has received thousands of consumer complaints regarding the AT&T Mobility plan. According to the federal regulatory agency, customers “were surprised and felt misled.”
FCC Enforcement Bureau Chief Travis LeBlanc said, “Unlimited means unlimited. As today’s action demonstrates, the commission is committed to holding accountable those broadband providers who fail to be fully transparent about data limits.”
FCC Commissioner Ajit Pai channeled influential German writer Franz Kafka, beginning a press statement with the Kafka quote, “It is an essential part of the justice dispensed here that you should be condemned not only in innocence but also in ignorance.”
From there, Pai opined quite broadly: “A government rule suddenly revised, yet retroactive. Inconvenient facts ignored. A business practice sanctioned after years of implied approval. A penalty conjured from the executioner’s imagination. These are more Kafkaesque badges adorn this Notice of Apparent Liability [what the FCC is formally imposing against AT&T], in which the Federal Communications Commission seeks to impose a $100 million fine against AT&T for failing to comply with the apparently opaque transparency rule the FCC adopted in its 2010 Net Neutrality Order.”
Commissioner Michael O’Rielly took a less literary, more forgiving, approach in commenting that the alleged violation “is tenuous at best. For instance, the main criticism is that AT&T did not disclose the exact speeds that an affected subscriber would experience under the MBR Policy. However, the 2010 Open Internet Order does not specifically require the disclosure of exact speeds provided under congestion management policies.”
O’Rielly continued: “Instead, the disclosure needs to describe the ‘practices’ effects on end users’ experience. Therefore, AT&T’s website disclosure stating that subscribers affected by the MBR Policy would experience slower speeds that would likely be noticeable during video streaming, but would ‘still have a good experience surfing the Web, accessing e-mail and continuing to use an unlimited amount of data each month without
incurring overage charges’ appears to meet this requirement.”
An AT&T representative reportedly told The Wall Street Journal that the carrier plans on “vigorously disputing the FCC’s assertions.”
T-Mobile US late last year announced an agreement with the FCC to provide more transparency to consumers who have their mobile data speeds throttled. The agreement followed FCC claims that T-Mobile US customers are able to access speed-testing applications that only show the unthrottled network speeds being offered by the carrier and not the true network speed to which a customer is being throttled. T-Mobile US customers have their network access speeds throttled to either 128 kilobits per second or 64 kbps depending on their rate plan, once they empty their allotted data bucket. Those customers will now be provided with access to network speed tests that show their current network speed.
