Last week, AT&T announced its intention to abandon an appeal of a decision of the 9th Circuit Court of Appeals granting the Federal Trade Commission the right to continue its lawsuit against AT&T for speed throttling its “unlimited data” wireless customers.

The notification came in a surprising four sentence notice filed with the court May 30:

At the May 10, 2018 case management conference in this matter, AT&T informed the Court that it expected at that time to request a 60-day extension from the Supreme Court of the deadline to file a petition for certiorari. See Audio Recording of May 10, 2018 Hr’g at 7:22. Since that hearing, AT&T has decided not to request such an extension and not to file a petition for certiorari to review the decision of the en banc Ninth Circuit, see 883 F.3d 848 (9th Cir. 2018). The deadline to file a petition for certiorari lapsed on May 29, 2018.

AT&T spokesman Mike Balmoris later told reporters: “We have decided not to seek review by the Supreme Court, to focus instead on negotiating a fair resolution of the case with the Federal Trade Commission.”

AT&T’s sudden change of heart surprised many observers, including some closely following the case at the 9th Circuit, which has held regular court supervised meetings to prepare for the widely expected Supreme Court challenge. AT&T notified the court in early May it would file its appeal as soon as May 29, and the court was preparing new discovery guidelines and deadlines between the two parties as the case proceeded.

AT&T had achieved a major victory in 2017 when a three-judge panel at the Ninth Circuit agreed with AT&T’s argument that the FTC had no jurisdiction over the company because part of its business includes traditional telephone service, something defined in law as being regulated exclusively by the FCC. At the same time, the FCC did not seem to have jurisdiction either, because wireless data throttling took place over a network not subject to common carrier service regulations.

Ninth Circuit Court of Appeals — San Francisco.

The Ninth Circuit then agreed to hear the case once again, this time “en banc” — meaning the full court would re-hear the case instead of a limited panel of three judges. In February, the court unanimously found the FTC did have regulatory jurisdiction over AT&T after all:

We conclude that the exemption in Section 5 of the FTC Act – “except . . . common carriers subject to the Acts to regulate commerce” – bars the FTC from regulating “common carriers” only to the extent that they engage in common-carriage activity. By extension, this interpretation means that the FTC may regulate common carriers’ non-common-carriage activities.

[…] This statutory interpretation also accords with common sense. The FTC is the leading federal consumer protection agency and, for many decades, has been the chief federal agency on privacy policy and enforcement. Permitting the FTC to oversee unfair and deceptive non-common-carriage practices of telecommunications companies has practical ramifications. New technologies have spawned new regulatory challenges. A phone company is no longer just a phone company. The transformation of information services and the ubiquity of digital technology mean that telecommunications operators have expanded into website operation, video distribution, news and entertainment production, interactive entertainment services and devices, home security and more. Reaffirming FTC jurisdiction over activities that fall outside of common-carrier services avoids regulatory gaps and provides consistency and predictability in regulatory enforcement.

In short, AT&T’s “get out of regulatory oversight free”-card was revoked, much to its consternation. The company promised a fast appeal to the Supreme Court. The case concerned a number of observers, not the least of which was the Federal Communications Commission, which has been so concerned about AT&T’s novel argument to escape regulation, it filed a brief supporting the FTC with the court:

If the en banc Court were to adopt AT&T’s position that the FTC Act’s common-carrier exception is “status-based” rather than “activity-based,” contrary to the reasoned analysis of the district court below, the fact that AT&T provides traditional common-carrier voice telephone service could potentially immunize the company from any FTC oversight of its noncommon-carrier offerings, even when the FCC lacks authority over those offerings—creating a potentially substantial regulatory gap where neither the FTC nor the FCC has regulatory authority.

That approach is contrary to a common-sense reading of the relevant statutes and could weaken or eliminate important consumer protections. While AT&T may prefer to offer services in a regulatory no man’s land, the law does not dance to AT&T’s whims.

While AT&T publicly expressed confidence about its appeal right up to the day it abandoned it, minutes from the Ninth Circuit trial scheduling and progress conferences reveal AT&T and the FTC were already privately talking with each other to avoid further litigation:

“Parties reported that they are conducting settlement negotiations.”

All observers agree a successful appeal by AT&T to the Supreme Court could have put telecommunications laws and regulations into chaos. Had AT&T successfully restored the three-judge panel’s decision, any telecommunications company could walk away with impunity from FCC and FTC oversight by simply starting a small telephone company serving just a handful of customers. Just one product or service subject to common carrier rules could effectively immunize a phone or cable company from regulations indefinitely, or until Congress changed the law to close that loophole.

Some observers predict AT&T’s decision not to appeal is a prelude to an imminent, favorable permanent settlement of the four-year old case. The evidence strongly suggests AT&T will likely escape any significant monetary punishment, and affected consumers may not get significant (if any) compensation for AT&T’s prior acts:

• The FCC shows no sign of following through on a 2015 press release threatening AT&T with $100 million in fines for its failure to properly disclose its speed throttling policy arbitrarily imposed on unlimited data customers who exceeded a company-defined amount of data usage. At the time the press release was issued, there were three Democrats and two Republicans serving on the Commission. Both of those Republicans opposed the fine and are now part of the Republican majority at the FCC under the Trump Administration. The FCC admitted in court papers that no further action has been taken to fine AT&T. The case was largely left in the hands of the FTC.
• During the Obama Administration, the FTC claimed it was interested in pursuing refunds for affected customers and punishing AT&T for its throttling practices. Last week, Andrew Smith, the FTC’s new director of the Consumer Protection Bureau told an audience today’s priority it to monitor providers over traffic throttling and making sure those practices are transparently disclosed to customers. “We’re planning to examine current practices in the industry,” Smith said. “We’re looking for areas in which ISPs may be engaged in unfair or deceptive practices, and we will bring enforcement action as appropriate.”

Smith

For AT&T, the decision to drop its appeal may have come down to whether it preferred to temporarily escape regulatory oversight until an enraged Congress passed new laws to put AT&T and other telecom companies back under oversight, or living with the kind of “light-to-little touch” regulatory approach favored by the Trump Administration and its regulatory agencies. Whatever deal emerges between AT&T and the Trump Administration’s FTC will likely be “win-win” for the company and the regulator, with consumers offered only token relief.

The goals likely to be achieved in any settlement:

• AT&T would clearly like to avoid a $100 million fine and other enforcement actions, so agreeing to ease throttling (something it has done already) and better disclose the practice would hardly create a problem for the company, especially if fines are dropped as a result.
• The FCC’s new “net neutrality” policy depends almost entirely on effectively abdicating oversight responsibility to the FTC, something embarrassing and hard to justify if AT&T managed to permanently bar the agency from regulating the company.
• The FTC can claim victory by telling consumers they are watching ISPs for undisclosed and unwarranted throttling, without opening up new legal challenges by outright banning of the practice, heavily fining violators, or collecting damages on behalf of customers victimized by prior bad acts.

AT&T does not see fixed wireless millimeter wave broadband in your future if you live in or around a major city.

John Stephens, AT&T’s chief financial officer, today reiterated to shareholders that building a small cell network for urban and suburban fixed wireless service does not make much sense from a business perspective.

“It’s the cost efficiency,” Stephens told an audience at Cowen and Company’s 46th Annual Technology, Media & Telecom Broker Conference. “Once you [get] the fixed wireless connection from the alley to your house, that’s great you can do that, but you have to get it from the alley into the core network.”

Stephens

Stephens noted that once AT&T realized it would require a collection of small cells to hand wireless traffic off, “building that out can be very expensive when you’re likely doing it in an urban market in a residential area that already has a lot of fiber [or] a lot of competition [from] incumbent telephone and cable companies.”

AT&T sees a likely different future for fixed wireless based on in its ongoing trials underway in Austin, Tex. — selling the service to commercial and manufacturing customers with robotic equipment and other machinery that need instant and fast wireless communications to communicate with each other and back to a central point.

Stephens believes a better idea for its 30 million U-verse fiber-near-the-home customers is to extend fiber directly to those customers’ homes. Stephens said AT&T would be financially better off scrapping the remaining copper wire running the last 500 feet from a customer’s home or business to the nearest fiber-equipped pedestal and give customers dedicated fiber to the home service instead.

“It may be very inexpensive for us compared to the [5G] alternative and gives the customer a tremendous level of service,” Stephens added.

Where millimeter wave could make sense is in exurban and rural areas where clusters of homes could potentially be reached by fixed wireless, assuming there was fiber infrastructure close enough to connect those small cells to AT&T’s network. But AT&T seems to be more interested in applying the technology in commercial and Internet of Things (IoT) applications where wireless access can be essential, and would be much easier to deploy.

Verizon, in contrast, is expanding millimeter wave fixed wireless broadband trials, with the hope of selling a wireless home internet replacement.

DirecTV’s satellite lineup, delivered over the internet.

DirecTV satellite customers with broadband connections might be able to scrap their satellite dishes and set-top equipment when AT&T launches its broadband-delivered version of DirecTV by the end of 2018.

AT&T Communications CEO John Donovan made the announcement at the MoffettNathanson Media & Communications Summit on Tuesday, telling the audience the lineup would be nearly identical to the satellite TV packages customers get today from DirecTV’s satellite dish service.

Customers who opt to dump their dish may also save money by moving their subscription to a broadband platform. Currently, AT&T sells DirecTV for $120-200 a month, depending on equipment and channel lineup. The broadband equivalent, which will not require any expensive set-top box equipment and will rely on a cloud-based DVR, will sell for $80-90 a month.

DirecTV satellite packages (new customer promotional rates — regular prices are higher)

“We won’t roll a truck,” to install a satellite dish, Donovan said. “The [equipment costs] will be cheaper. It will be a thinner, lighter version and we will have lower operating costs. We anticipate passing [on] a lot of those cost savings [to customers].”

Donovan believes a transition away from satellite will be a win-win for the company and consumers because both will face lower costs. It also gives DirecTV the chance to expand, marketing its full video lineup to customers who can’t get a satellite signal, don’t want a dish, or live in a building that restricts satellite equipment.

“It will extend our footprint,” Donovan said at the MoffettNathanson event. “It will not only have a lower price point, but it will have margins that are similar and, therefore, better returns because there will be less upfront costs.”

With today’s announcement, AT&T will have at least five different video products on offer for consumers: DirecTV satellite service, DirecTV over broadband, DirecTV Now — a slimmed down package targeting cord-cutters, U-verse TV — AT&T’s traditional cable TV package, and AT&T Watch — a forthcoming ultra-slim offering that will cost $15 a month for non-AT&T wireless customers. Existing AT&T wireless customers will get Watch free of charge, if they have an unlimited data plan.

AT&T’s DirecTV Now service has introduced its long-awaited cloud storage DVR service to its streaming customers, offering 20 hours of recording space for no additional charge.

“True Cloud DVR” has been in beta testing for about 10 months as AT&T built up its streaming platform and squashed several persistent bugs afflicting recordings. With today’s introduction, DirecTV Now customers will have access to a time-shifting DVR with true fast-forward and rewind features without having to pay extra for the service. But recordings will expire after 30 days.

Later this summer, AT&T will offer customers a $10 optional upgrade to 100 hours of DVR storage space and the ability to store recorded shows for up to 90 days.

DVR service is just one of several changes introduced today by DirecTV Now:

• A complete app refresh, emphasizing the viewer’s favorite shows and networks.
• The option to add a third concurrent stream for an additional $5 a month.
• Over 25,000 on-demand titles and much faster availability of some TV shows for on-demand viewing – as little as minutes after airing.
• Users will be able to access their local stations while traveling outside of the area.

The upgraded look and new features are available starting today for iOS and tvOS users and web users. Android, Fire TV, and Roku devices will see upgrades in the weeks ahead.

Earlier press accounts that AT&T paid $200,000 to President Donald Trump’s lawyer Michael Cohen for “consulting work” was actually closer to $600,000, according to a source talking to Reuters on Wednesday.

AT&T acknowledged on Tuesday it paid $200,000 to Cohen-owned Essential Consultants, a limited liability shell company, claiming it was to help the telecom company gain “insights” into the Trump Administration at the same time it was lobbying to win federal approval of its merger with Time Warner, Inc., and was seeking regulatory favors on issues including net neutrality, broadband regulation, pole attachment fees, municipal broadband, and decommissioning its rural landline network.

The first revelations about AT&T’s payment to the same company used to pay $130,000 in hush money to porn actress Stormy Daniels came from her attorney, Michael Avenatti, who released detailed information about payments from AT&T, a pharmaceutical company, and a firm with direct ties to Russian oligarch Viktor Vekselberg, a close confidante of Russian president Vladimir Putin.

Reuters reports it was unclear how Avenatti knew about those payments, but his information was detailed and partly confirmed by AT&T, noting payments of $50,000 in October-December, 2017 and one additional payment in January, 2018 of $50,000 — totaling $200,000.

Cohen

However, the contract was for a year, the source told Reuters, meaning AT&T likely paid more than $200,000 to Cohen’s company. A full year contract for $50,000 per month would total $600,000. The source declined to give a total for the payments made by AT&T to Cohen’s company.

It is not known what happened to the money AT&T paid Cohen, but there is speculation the president could have known about the payments and seen them as a goodwill gesture as AT&T battles with the Administration’s Justice Department and Federal Trade Commission over its $85 billion merger deal and accusations it speed-throttled wireless customers who exceeded an arbitrary usage allowance.

AT&T today released a company-wide letter to employees explaining its position on the matter:

From: T Now
Sent: Wednesday, May 09, 2018 12:10 PM
Subject: Perspective on the news

To: All U.S. AT&T employees

Late yesterday, many media outlets reported that in 2017, AT&T hired Michael Cohen, a former lawyer with the Trump Organization. We want you to know the facts.

In early 2017, as President Trump was taking office, we hired several consultants to help us understand how the President and his administration might approach a wide range of policy issues important to the company, including regulatory reform at the FCC, corporate tax reform and antitrust enforcement. Companies often hire consultants for these purposes, especially at the beginning of a new Presidential Administration, and we have done so in previous Administrations, as well.

Cohen was one of those consultants. Cohen did no legal or lobbying work for us, and our contract with Cohen expired at the end of its term in December 2017. It was not until the following month in January 2018 that the media first reported, and AT&T first became aware of, the current controversy surrounding Cohen.

Senator Richard Blumenthal, a Democrat, said at a press conference that the Judiciary Committee should review the payments AT&T and other companies made to Cohen.

Blumenthal speculated those payments “may well have been used to influence the president of the United States, using Michael Cohen and his shell company as a conduit.”