Wednesday, March 07, 2012

AT&T's Terms of Service have always allowed for throttling

An AT&T user recently won a small claims court judgment against the wireless carrier because it throttled his data, but perhaps AT&T didn't defend itself properly: its terms of service (TOS) is pretty clear that the carrier can do basically anything it wants with regard to a user's service.

iPhone owner Matt Spaccarelli, who filed a small claims complaint against AT&T after it began throttling his data speeds, was awarded $850 last Friday by pro-tem Judge Russell Nadel. It should be noted that in California, small claims court litigants are prohibited from bringing their attorneys with them. That includes corporations who, of course, are people anyway.

That could be why their defense didn't cover this clause in the AT&T TOS, which for better or worse says:

"AT&T reserves the right to (i) deny, disconnect, modify and/or terminate Service, without notice, to anyone it believes is using the Service in any manner prohibited or whose usage adversely impacts its wireless network or service levels or hinders access to its wireless network."

It's basically the CYA type of clause which has existed since the iPhone first launched, and gives AT&T carte blanche to do just about anything it wants to, as long as it's related to service improvement or sustainability on the network.

AT&T has said it might appeal the Spaccarelli case, and it probably should. The earlier Honda Civic Hybrid case showed people that suing in small claims court could amount to a much bigger payout than agreeing to a class action settlement. $850 is a pretty good incentive for more people to take AT&T to small claims court, although it's not easy having to take time off to appear in court.

There's very little recourse with AT&T at any rate. AT&T's subscriber contract prohibits class action or jury trials, leaving arbitration and small claims as options for unhappy customers.

Currently, AT&T's data plans are set at 300 MB/month for $20, 3 GB/month for $30, or 5 GB/month for $50. Those with grandfathered unlimited data plans ($30) are throttled down to 256kbps once they top 3GB (HSPA+) or 5GB (LTE).

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