AT&T Wireless Risks Having to Pay $100 Million in Tuition on Contract Law

[Commentary] The Federal Communications Commission has issued a Notice of Apparent Liability to AT&T Wireless with a $100 million “forfeiture” for throttling service to subscribers still having “unlimited” service plans. The FCC applies the transparency requirements contained in its 2010 and 2015 Open Internet Orders that passed muster with appellate court review.

Ironically, AT&T could have avoided the fine if it strategically blended service contracts with FCC filed tariffs. Historically, tariff filing requirements have been vilified as harmful to competition, innovation and carrier flexibility. The FCC has mandated detariffing of many services including wireline and wireless long distance services on the assumption that carriers will self-regulate in a competitive market. Apparently even in competitive markets, carriers can risk a bait and switch gambit. If only AT&T had a tariff filing option. It could have inserted language deep in the boilerplate of a tariff to accord it near total flexibility to throttle whenever it wanted.