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AT&T customer wins $850 in throttling case

When AT&T started slowing down the data service for his iPhone, Matt Spaccarelli, an unemployed truck driver and student, took the country's largest telecommunications company to small claims court.

His award: $850.

Pro-tem Judge Russell Nadel found in favor of Spaccarelli in Ventura Superior Court in Simi Valley on Friday, saying it wasn't fair for the company to purposely slow down his iPhone, when it had sold him an "unlimited data" plan.

Spaccarelli could have many imitators. AT&T has some 17 million customers with "unlimited data" plans who can be subject to throttling. That's nearly half of its smartphone users. AT&T forbids them from consolidating their claims into a class action or taking them to a jury trial. That leaves small claims actions and arbitration.

Late last year, AT&T started slowing down data service for the top 5 percent of its smartphone subscribers with "unlimited" plans. It had warned that it would start doing so, but many subscribers have been surprised by how little data use it takes for throttling to kick in -- often less than AT&T provides to those on limited or "tiered" plans.

Spaccarelli said his phone is being throttled after he's used 1.5 gigabytes to 2 gigabytes of data within a new billing cycle. Meanwhile, AT&T provides 3 gigabytes of data to subscribers on a tiered plan that costs the same -- $30 per month.

When slowed down, the phone can still be used for calls and text messaging, but Web browsing is slow, and video streaming doesn't work.

AT&T did not say whether it would appeal the decision. AT&T area sales manager Peter Hartlove, who represented the company before Nadel, declined to comment on the ruling. He argued in court that his employer has the right to modify or cancel customers' contracts if their data usage adversely affects the network.

Companies with as many potentially aggrieved customers as AT&T usually brace themselves for a class-action lawsuit. But last year, the Supreme Court upheld a clause in the company's subscriber contract that prohibits customers from taking their complaints to class actions or jury trials.

That means thousands -- and possibly hundreds of thousands -- of people who feel abused by AT&T's policy could seek to challenge the company, one by one, in arbitration or small claims court. The customer contract specifies that those who win an award from the company in arbitration will get at least $10,000. Spaccarelli picked that amount for his claim.

In his ruling, Nadel looked at the remaining 10 months in Spaccarelli's two-year contract with AT&T and took an average of what he might pay monthly for using additional data. AT&T charges $10 for every extra gigabyte over 3 gigabytes.

Nadel said it's not fair for AT&T to make a promise to Spaccarelli when he buys the phone while burying terms in his contract that give the company the right to cut down data speeds.