Today, the FCC announced that it plans to slap AT&T Mobility with a $100 million fine for allegedly violating the 2010 Open Internet Order’s transparency rule. Specifically, the FCC alleges that AT&T throttled the speed of data connections of subscribers with unlimited data plans who exceeded at most 5 GB of use per month, without warning and without disclosing what it was doing.

Almost 800 years to the day after Magna Carta was signed, the FCC makes clear that it doesn’t give two figs about basic Anglo-Saxon legal principles,” said Berin Szoka, President of TechFreedom. “This settlement imposes massive penalties for conduct that was not illegal at the time. But the real story here is not about AT&T; it’s that the FCC is going to use massive fines as a sledgehammer to coerce companies into settling ‘Open Internet’ cases even as Title II regulations languish in court. If settling means $50 million instead of $100 million, or $100 million instead of $200 million, companies will settle routinely — and the courts will play no role in checking the FCC’s discretion. Thus, strict as the Order is on paper, it will become truly absurd in practice.”

It’s far from clear that AT&T’s so-called throttling actually made consumers overall worse off, since extreme bandwidth hogs slowed down congested mobile networks for everyone,” continued Szoka. “But if the practice was harmful, or if AT&T actually deceived consumers about it, this is precisely the kind of practice that the FTC could have dealt with under its existing authority — without any need for the FCC to get involved or to take the draconian step of imposing Title II regulation on the Internet.”


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