• by Wendy Davis  @wendyndavis, May 27, 2015

AT&T has asked the 9th Circuit Court of Appeals to decide whether the Federal Trade Commission can proceed with a lawsuit stemming from the telecom's practice of throttling wireless customers.

The telecom argues that the appellate court should agree to hear the matter now in order to potentially save both sides the expense of litigation. “If this Court waits to review until after a trial, the parties could waste enormous amounts of time and money litigating this case to completion,” AT&T argues in its petition seeking an immediate appeal. The FTC isn't opposing AT&T's request, the telecom says in papers filed on Tuesday with the 9th Circuit.

The dispute between the FTC and AT&T centers on the wireless company's practice of slowing the broadband speeds of some mobile users who pay for unlimited data. The FTC alleged that AT&T dupes consumers by offering them “unlimited” data plans, but then throttling those who use more than a fixed amount.

AT&T argues that the lawsuit should be dismissed because the FTC lacks the authority to bring enforcement actions against providers of common carrier services. In February, when the Federal Communications Commission voted to enact sweeping net neutrality rules, it reclassified broadband as a common carrier service.

But the FTC countered that the FCC's February decision isn't retroactive. When the FTC filed suit, in October of last year, wireless broadband was still considered an “information” service, which isn't subject to common carrier rules.

U.S. District Court Judge Edward Chen agreed with the FTC, ruling that the net neutrality order doesn't apply retroactively.

AT&T now argues that Chen's decision was wrong. “It is not retroactive to hold that a federal agency lacks the authority right now to maintain an action in district court,” the company argues in its latest court papers. “Whether retroactivity analysis is warranted at all in this context is a complex issue that the Ninth Circuit has not had occasion to decide. It is thus an apt candidate for immediate review.”

AT&T began throttling unlimited users soon after introducing tiered billing plans, which require customers to pay for a monthly allotment of data. The wireless provider still allows longtime users who previously had unlimited plans to avoid tiered billing, but slows some of them down after they hit a cap of either 3GB a month for customers on the 3G and HSPA+ networks or 5 GB a month for people using the LTE network.

The company says it moved to tiered billing in order to manage its network, which saw data usage increase by 20,000 percent between 2007 and 2011. “This skyrocketing increase in data consumption stretched the capacity of AT&T’s wireless network beyond its limits, causing dropped calls, unavailable cell sites, and frustration for AT&T’s customers,” AT&T says in its newest court papers.

Since 2011, when AT&T began the throttling program, it's slowed down more than 3.5 million wireless customers, according to the FTC. Earlier this year, AT&T revised its program. Now, the company only slows down customers when the network is congested.