Throttle Me Not: 2015 Open Internet Order Protects Unlimited Data Plan Users

By Marcum, Shawn | American University Business Law Review, July 1, 2016 | Go to article overview

Throttle Me Not: 2015 Open Internet Order Protects Unlimited Data Plan Users


Marcum, Shawn, American University Business Law Review


INTRODUCTION

Throttling is an intentional practice that mobile broadband Internet access service ("BIAS") providers use to slow down users' data throughput speeds.1 One major issue has arisen over the past few years: unlimited data users have seen their Internet speeds dramatically slowed down after using more than a predetermined amount of data within a pay-period even though these users are supposed to receive "unlimited" data.2 President Bill Clinton even pointed out on Jon Stewart's Daily Show that cellphone carriers like AT&T Inc. ("AT&T") and Т-Mobile US, Inc. ("T-Mobile") want to quickly regain their infrastructural investments by implementing throttling policies to side-step an open Internet instead of continuing to develop mobile broadband infrastructure in rural areas.3

Throttling unlimited data is analogous to an unlimited mileage automobile rental agreement. Consider a car rental agreement which clearly states that a rental car may be driven as far as desired during the rental period. Imagine that the renter takes the car for a drive under the impression that she can drive unlimited miles. After she drives 100 miles, the car automatically slows down to five miles per hour and can go no faster for the rest of the rental period. Clearly, no one would find this unlimited mileage car rental plan to be practical, or even as fitting with the deal that was advertised, if the unlimited plan only applied to the distance and not the speed at which the car may be operated. Likewise, mobile Internet users do not find their unlimited data plans to be what they paid for when their data is intentionally throttled after reaching a certain data cap.4

This Comment argues that the FCC's 2015 Open Internet Order's "no throttling" rule successfully prohibits cellphone carriers-here, mobile BIAS providers-from targeting unlimited data users and throttling them. Considering the FCC's past regulatory problems in this area, the "no throttling" rule must be proven applicable to mobile BIAS providers and within the regulatory jurisdiction of the FCC. Additionally, the carriers' practice of throttling unlimited data users must be shown to fall within the purview of the "no throttling" rule and not its exception.

Section II of this Comment provides background on the throttling issue and illustrates a need for throttling regulation. It then shows how past regulatory attempts at throttling failed. Finally, it presents the FCC's latest attempt at regulating throttling. From this background, Section III concludes that targeting and throttling unlimited data users is illegal under the FCC's latest regulatory attempt. To do so, Section III(A) analyzes the reasonableness of the FCC's reclassification of mobile BIAS providers as telecommunications. Section III(B) considers whether the "no throttling" rule is within the FCC's regulatory jurisdiction. Section III(C) discusses how the targeting and throttling of unlimited data users does not fit within the legitimate network management practice exception to the "no throttling" rule.

Lastly, Section IV recommends that the FCC's "no throttling" rule remain unchanged and effective because it is good public policy that promotes business competition in the United States. Consequently, Section V concludes that the "no throttling" rule is good for the public because it not only considers the needs of mobile BIAS providers, but it also takes into account the interests of cellphone carriers' customers, while enhancing economic stability throughout the United States via more reliable mobile broadband in rural areas.

II. BIAS PROVIDERS' CLASSIFICATION IMPACTS THROTTLING PRACTICES

This Section will illustrate the need for regulation. First, it will reveal who is throttling and how prevalent throttling is in the mobile broadband market. Afterwards, this Section will explain why throttling has not been regulated. And third, it will describe .the FCC's current attempt to regulate the practice. …

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