• by Wendy Davis  @wendyndavis, June 27, 2016

A federal judge has authorized customers of AT&T to immediately appeal his decision to send their lawsuit over data throttling to arbitration, according to court records.

U.S. District Court Judge Edward Chen authorized the appeal late last week, after a hearing on Thursday, according to entries on the court docket. He hasn't issued a written decision spelling out his reasons.

The move means that the 9th Circuit Court of Appeals could soon decide whether AT&T must face a potential class-action for allegedly slowing down the broadband connections of users with "unlimited" data plans.

The consumers say they were duped by AT&T, which allegedly sold them "unlimited" mobile broadband plans, but then throttled users who hit monthly caps ranging from 3-5 GB.

The dispute stems from AT&T's 2011 decision to throttle subscribers with "unlimited" smartphone data. The Federal Trade Commission has also sued AT&T over its practices; that matter is pending in the 9th Circuit.

From 2011 until 2015, AT&T allegedly throttled more than 3.5 million customers who exceeded monthly allotments. The company recently revised its throttling practices and now only slows down customers who exceed 22 GB in a month. AT&T also now only throttles those users when the network is congested.

Earlier this year, Chen granted AT&T's request to send the case to arbitration. He ruled that the wireless consumers who are suing AT&T signed contracts that require arbitration of disputes on an individual basis. The consumers can still proceed with individual arbitrations, but doing so often is prohibitively costly.

Last month, the consumers asked Chen to authorize an appeal to the 9th Circuit. They argued it wouldn't be practical for them to litigate each matter separately, given the complexity and cost of the case