The Federal Trade Commission today filed a lawsuit against AT&T for its practice of subjecting grandfathered unlimited data customers to speed throttles that dramatically cut speeds up to 90 percent after customers use more than 3GB of data on AT&T’s 3G network or 5GB on its 4G network. Thus far, according to the FTC, AT&T has throttled at least 3.5 million unique customers a total of more than 25 million times.

The FTC’s complaint alleges that the company failed to adequately disclose to its customers on unlimited data plans that, if they reach a certain amount of data use in a given billing cycle, AT&T reduces – or “throttles” – their data speeds to the point that many common mobile phone applications – like web browsing, GPS navigation and watching streaming video –  become difficult or nearly impossible to use.

“AT&T promised its customers ‘unlimited’ data, and in many instances, it has failed to deliver on that promise,” said FTC Chairwoman Edith Ramirez. “The issue here is simple: ‘unlimited’ means unlimited.”

FCC chairman Thomas Wheeler publicly complained about Verizon’s plans to start a similar throttling program on its wireless network, questioning the fairness of cutting speeds for certain customers while exempting others. Both Verizon and AT&T have claimed speed throttles are part of a fair usage policy that allows all customers to share its wireless resources. Broadband providers have often painted a picture of a “bandwidth hog” taking a disproportionate share of network resources away from other customers, but there is no evidence heavier users are creating conflicts for other users, especially as wireless carriers encourage customers to use more data.

From AT&Ts website

The logic of rationing Internet use for unlimited customers while providing unlimited access to those willing to pay usage-based charges escaped the FTC, which is what brought the suit.

According to the FTC’s complaint, AT&T’s marketing materials emphasized the “unlimited” amount of data that would be available to consumers who signed up for its unlimited plans. The complaint alleges that, even as unlimited plan consumers renewed their contracts, the company still failed to inform them of the throttling program. When customers canceled their contracts after being throttled, AT&T charged those customers early termination fees, which typically amount to hundreds of dollars.

The FTC alleges that AT&T, despite its unequivocal promises of unlimited data, began throttling data speeds in 2011 for its unlimited data plan customers after they used as little as 2 gigabytes of data in a billing period. According to the complaint, the throttling program has been severe, often resulting in speed reductions of 80 to 90 percent for affected users.

According to the FTC’s complaint, consumers in AT&T focus groups strongly objected to the idea of a throttling program and felt “unlimited should mean unlimited.” AT&T documents also showed that the company received thousands of complaints about the slow data speeds under the throttling program. Some consumers quoted the definition of the word “unlimited,” while others called AT&T’s throttling program a “bait and switch.” Many consumers also complained about the effect the throttling program had on their ability to use GPS navigation, watch streaming videos, listen to streaming music and browse the web.

The complaint charges that AT&T violated the FTC Act by changing the terms of customers’ unlimited data plans while those customers were still under contract, and by failing to adequately disclose the nature of the throttling program to consumers who renewed their unlimited data plans.

FTC staff worked closely on this matter with the staff of the Federal Communications Commission.

The Commission vote authorizing the staff to file the complaint was 5-0. The complaint was filed in the U.S. District Court for the Northern District of California, San Francisco Division.

Speed bump

More than half of AT&T’s wireless customers are paying at least $100 a month for 10GB or more of wireless data on AT&T’s Mobile Share Plans at the same time AT&T continues to throttle its legacy unlimited data customers who use more than 3GB of data on its 3G network or 5GB of data on its 4G LTE network.

AT&T claimed in 2012 it implemented its “fair usage policy” for unlimited customers to assure all could receive reasonable service during peak usage times when cell towers become congested.

AT&T also blames “a serious wireless spectrum crunch” for the speed throttling, implying access to more spectrum could help ease the problem. But there is a much faster way to overcome AT&T’s “spectrum crunch:” agree to pay them more money by ditching that $30 unlimited plan for a tiered plan.

John Stephens, AT&T’s chief financial officer, told investors Wednesday that nothing boosts revenue more than pushing customers into usage-cappped data plans that customers are regularly forced to upgrade.

“On the ARPU (average revenue per user/customer) story, I think the biggest issue with the improvement is people buying the bigger [data] buckets and buying – upping plans,” said Stephens. “We had over 50% of the customer base at the 10GB or bigger plans.”

Stephens added that AT&T benefited from customers upgrading to 4G LTE devices that are handled more efficiently by AT&T’s mobile data network.

Increased usage and upgraded data plans delivered a 20% increase in data billings over the last quarter.

Since 2012 AT&T has paid out more than $50 billion to shareholders through dividends and share buybacks. The company benefited from nearly $20 billion a year in free cash flow and asset sales over the last two years and is expected to repeat those numbers this year. Consolidated revenue at AT&T grew to $33 billion, up $800 million since the same time last year.

Miraculously, despite the “alarming spectrum crunch,” AT&T found more than enough spectrum to award its best customers with a “double data” promotion that turns a 15GB data plan into a 30GB plan, a 20GB plan to 40GB, a 30GB plan to 60GB, a 40GB plan to 80GB, or a 50GB plan to 100GB. Importantly, AT&T boasts its double data promotion won’t “explode” — their language for “expire” — on customers until their contract ends.

Lowering the bar on “unlimited use” customers.

“Those exploding offers — customers hate those offers,” said AT&T Mobility CEO Ralph de la Vega at a recent investor conference. “Unless they change their mind, we won’t offer those kinds of promotions.”

But de la Vega doesn’t mind leaving the company’s most loyal legacy customers in the penalty box if they cling to their grandfathered unlimited data plans. The throttles stay and the allowances have remained unchanged since first announced, despite the bountiful spectrum obviously ready and available to serve AT&T’s deluxe customers. Unlimited customers are regularly reminded they can easily avoid the throttle — just abandon that unlimited data plan. According to Stephens, more than 80% of AT&T’s customers already have.

The excuses for wireless speed throttles and killing off unlimited data plans at AT&T and Verizon Wireless don’t seem to wash with FCC chairman Thomas Wheeler, who demanded Verizon offer the “rationale for treating customers differently based on the type of data plan to which they subscribe, rather than network architecture or technological factors,” after it announced it was planning speed throttles for its remaining unlimited data plan customers. Verizon canceled the plan after Wheeler began scrutinizing it, but the throttles are still in place at AT&T.

AT&T’s 10GB Mobile Share Plan starts with a $100 data plan. Customers also pay:

• $10 a month for each auto-based smart-locator;
• $10 a month for each tablet, camera or game device;
• $15 a month for each basic phone;
• $20 a month for each wireless home phone replacement;
• $20 a month for each connected Internet device;
• $40 a month for each connected smartphone.

A family of four with four smartphones, a tablet, and AT&T’s wireless home phone replacement would be billed $290 a month before at least $39 in taxes, fees, and surcharges — well north of $300 a month for most.

Verizon Wireless, facing scrutiny from FCC chairman Thomas Wheeler, today announced it has canceled plans to introduce a new “network optimization” policy that would have significantly throttled down speeds for heavy users still on grandfathered, unlimited use data plans.

Stop the Cap! received a statement from Verizon Wireless this afternoon announcing a sudden change of heart:

Verizon is committed to providing its customers with an unparalleled mobile network experience.  At a time of ever-increasing mobile broadband data usage, we not only take pride in the way we manage our network resources, but also take seriously our responsibility to deliver exceptional mobile service to every customer.  We’ve greatly valued the ongoing dialogue over the past several months concerning network optimization and we’ve decided not to move forward with the planned implementation of network optimization for 4G LTE customers on unlimited plans.  Exceptional network service will always be our priority and we remain committed to working closely with industry stakeholders to manage broadband issues so that American consumers get the world-class mobile service they expect and value.

Chairman Wheeler questioned Verizon’s strategy almost immediately after the company announced its “network optimization” strategy in July.

Wheeler

“‘Reasonable network management’ concerns the technical management of your network; it is not a loophole designed to enhance your revenue streams,” Wheeler wrote in a July 30 letter to Verizon Wireless CEO Dan Mead. “It is disturbing to me that Verizon Wireless would base its ‘network management’ on distinctions among its customers’ data plans, rather than on network architecture or technology.”

Wheeler reminded Mead the FCC defined network management practices to be reasonable “if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.”

Wheeler told Mead Verizon’s plans didn’t qualify.

“I know of no past FCC statement that would treat as ‘reasonable network management’ a decision to slow traffic to a user who has paid, after all, for ‘unlimited” service,'” Wheeler wrote.

Wheeler also questioned how Verizon could justify its planned speed throttling under the conditions it agreed to after winning the 700MHz “C Block.” That spectrum was accompanied by a special FCC mandate – open platform rules which prohibits Verizon Wireless from denying, limiting, or restricting the ability of end users to download and use applications of their choosing on the C Block networks. A speed throttle would make using some applications impossible.

In August, Wheeler hammered home his opposition to Verizon’s plans at a news conference.

“My concern in this instance–and it’s not just with Verizon, by the way, we’ve written to all the carriers–is that [network management] is moving from a technology and engineering issue to a business issue, such as choosing between different subscribers based on your economic relationship with them.”

Wheeler has expressed irritation that Verizon’s justification for congestion management only applied to its unlimited customers, while those paying on a per-gigabyte basis could use (and spend) as much as they like.

Verizon responded that other providers — notably AT&T — already have a similar network management policy in place, throttling speeds of grandfathered unlimited customers who consume more than 3GB of wireless traffic on its 3G network or 5GB on its 4G network a month.

“‘All the kids do it’ was never something that worked with me when I was growing up and didn’t work with my kids,” Wheeler responded, noting Verizon was trying to reframe the issue instead of justifying the need for speed throttles for some customers, while giving others unlimited access as long as they pay.

Effective June 1st, all Sprint contract and prepaid customers, as well as those using Virgin Mobile USA and Boost will find their wireless data speeds throttled if Sprint finds they are among the top 5% of users on a congested cell site.

Text messages are being sent to all customers about Sprint’s new “fairness algorithm” that it will use as part of its data “prioritization management.”

“Beginning 6/1/14, to provide more customers with a high quality data experience during heavy usage times, Sprint/Virgin Mobile USA/Boost may manage prioritization of access to network resources in congested areas for customers within the top 5 percent of data users.”

Such text messages are unlikely to be understood by average customers who have no idea how much data they use, don’t understand what “prioritization of access” means, or what would make them a “top 5 percent” data user. What many do understand is that they were sold “unlimited use” plans that will be much harder to use if they are identified as a 5%‘r.

Fierce Wireless found answers to several unanswered questions:

• Boost and Virgin customers exceeding 2.5GB of data use a month used to find their data speeds cut to 256kbps until the beginning of their next billing cycle. In March, Sprint announced it was further cutting speeds in the punishment zone to 128kbps for affected prepaid customers;
• Sprint’s postpaid/prepaid customers are likely to find themselves throttled once they exceed 5GB of usage per month.

Sprint says the throttle will only be activated on “congested cell sites” and will impact WiMAX, 3G and LTE 4G networks owned by the company. Anyone who has used Sprint’s 3G network will discover most urban and suburban Sprint cell towers are frequently congested, judging by the low speeds many customers endure. Rural customers or those served on the edge of a suburban area may never find themselves throttled and Sprint promises once traffic clears, the throttle is shut off.

At the same time, once Sprint labels you a “heavy user,” they can leave you in the penalty box for up to 60 days because the network prioritization will also apply during the following month of service.

“Customers that continue to fall within the top 5 percent of data users will continue to be subject to prioritization,” Sprint said.

The approach “will enable us to provide more customers with a high quality data experience during heavy usage times,” Sprint said in a statement sent to FierceWirelessTech.

Other wireless carriers also have employed speed throttling to control their grandfathered “unlimited data” customers, Fierce Wireless notes:

During September 2011, Verizon Wireless implemented what it  termed a “network optimization” plan to limit the bandwidth for the operator’s top 5 percent of 3G smartphone users who are on a grandfathered unlimited data plan. (Ed. Note: However, because of FCC requirements, Verizon cannot throttle its 4G LTE customers.)

One month later, AT&T Mobility  instituted a similar plan, targeting the top 5 percent of users on unlimited plans in specific high-traffic locations. However, AT&T was forced to alter its approach in early 2012 after an outcry from users who were unprepared to have their speeds reduced, particularly in cases where some of them had only consumed 2 GB of data. AT&T’s revised policy slowed speeds of unlimited data users who exceeded specific data thresholds.

T-Mobile US also uses a form of prioritization, noting “certain T-Mobile plans may be prioritized” over service plans under its GoSmart Mobile prepaid brand.

Millenicom customers have had their ups and downs over the last two weeks coping with e-mail notifications they would lose, keep, and once again lose their unlimited wireless data plan.

Just a day after Millenicom heard that Sprint would allow them to continue selling Unlimited and Bring Your Own Device plans, the wireless carrier best known for its “unlimited for life” offer changed its mind:

We are very sorry to report that Sprint has reversed their decision from yesterday and terminated their agreement with the gateway for our Unlimited and BYOD accounts.

We are not certain how long until the accounts will be closed.

We will be shipping out Hotspot devices to those clients who had opted for that solution and BMI.net is ready to fulfill orders for those choosing to go with them.

We have attempted to keep you informed every step of the way and avoid any abrupt transition. We apologize that we weren’t able to come through.

Thank you for allowing us to be of service and please accept our sincere wish for your future success.

Dennis Castle
Owner

It is not the first time Millenicom has had problems with Sprint, which has proved to be a difficult carrier to deal with with respect to unlimited use plans.

Sprint’s decision is a major blow to rural Americans who lack access to cable or DSL broadband and are forced to consider satellite-delivered Internet access or pay even more for wireless data plans that come with puny usage caps, overlimit fees or speed throttles.

There are a few alternatives, but since these providers resell access to Sprint-owned networks, all are potentially vulnerable to Sprint’s evolving views on resellers:

Blue Mountain Internet (BMI) offers an “unlimited plan” that isn’t along with several usage allowance plans. BMI strongly recommends the use of their Mobile Broadband Optimizer software that compresses web traffic, dramatically improving speeds and reducing consumption:

Monthly Plans

• $39.99/Month – 1 Gig Data (** up to 3GB compressed) ($25/GB Overlimit Fee)
• $59.99/Month – 3 Gig Data (** up to 9GB compressed) ($20/GB Overlimit Fee)
• $79.99/Month – 5 Gig Data (** up to 15GB compressed) ($20/GB Overlimit Fee)
• $99.99/Month – 10 Gig Data (** Up to 45GB compressed) ($15/GB Overlimit Fee)

• $79.99/Month – Unlimited (Bring Your Own Device) – BYOD
• $99.99/Month – Unlimited Data (S Network) ***

There is a $100 maximum on overlimit fees, but BMI reserves the right to suspend accounts after running 3-5GB over a plan’s allowance to limit exposure to the penalty rate. The compression software is for Windows only and does not work with MIFI devices or with video/audio streaming. BMI warns its wireless service is not intended for video streaming. Customers are not allowed to host computer applications including continuous streaming video and webcam posts that broadcast more than 24 hours; automatic data feeds; automated continuous streaming machine-to-machine connections; or peer-to-peer (P2P) file-sharing.

EVDODepotUSA offers two truly unlimited use plans starting at $119 a month. The company is only contracted to offer access to Sprint’s woefully congested 3G network and the Clear 4G WiMAX network that typically does not offer much coverage in rural areas. LTE access is not currently available. There is a six month contract obligation, but the company also offers a 10-day free trial.

Their current plans:

Wireless ‘n Wifi offers two partly unlimited plans with no contract commitment. The company charges a refundable deposit on devices, but they become yours to keep after two years:

• Unlimited 4G Sprint/Clear WiMAX with 3G Fallback ($58.99) offers unlimited WiMAX service but has a 5GB cap on Sprint’s 3G network, the network rural customers will encounter the most. Total start-up fee is $194.93 which includes an activation fee, modem deposit (refunded upon modem return or after 24 months of service), the first month of service, and shipping for the wireless device.
• Unlimited 4G LTE with WiMAX and 3G Fallback ($79.99) offers unlimited Sprint 4G LTE and Sprint/Clear WiMAX service with a 35GB cap on Sprint’s 3G network. Customers can select a dual-band device that supports LTE and 3G service for $246.93 (includes activation fee, modem upcharge fee, first month of service, shipping, and refundable $100 modem deposit). Customers looking for access to LTE, 3G, and WiMAX can choose a tri-band device for $315.93 (includes activation fee, modem upcharge, first month of service, shipping and refundable deposit.) Keep in mind Sprint’s 4G LTE network is still very spotty.