AT&T store in Perrysburg, Ohio.

The good news—I'm on the winning side of a lawsuit, yay. 

That is, I'm one of the legion of AT&T customers who thought they had unlimited data, only to allegedly have our cell service surreptitiously throttled whenever we used too much—in some cases, anything over 2 GB a month. 

With two teens on our family plan voraciously streaming videos, I suspect we were in the red every month. But all we knew was that near the end of most  billing cycles, our phones became practically unusable. 

On Tuesday, AT&T and the Federal Trade Commission announced a $60 million settlement to resolve charges that the company misled consumers about its "unlimited plan," in violation of Section 5 of the FTC Act.

The FTC says eligible consumers don't have to take any action to get their cut. Those who are still AT&T customers will get an automatic credit, and those who are not will be mailed checks.

So…um…how much are we each getting? The FTC doesn't say. But when the agency filed the suit in the Northern District of California 2014, it alleged that at least 3.5 million AT&T customers had been subject to throttling more than 25 million times.

In other words, I suspect my piece of the $60 million will be modest—and not worth the past annoyance of having a phone that periodically slowed to a crawl.

FTC Commissioner Rohit Chopra—a non-lawyer who was previously assistant director and student loan ombudsman at the Consumer Financial Protection Bureau—issued a lengthy separate statement blasting AT&T for pulling "a bait and switch."

"No settlement is perfect. While I would have liked to see AT&T pay more for the company's scheme, I fully appreciate the risks and resources associated with litigation," Chopra wrote. 

"There are also important lessons from this matter that I hope the entire agency can learn," he continued. "Scammers come in all sizes. During my tenure as a commissioner, I have raised concerns about disparate treatment of small firms, where the agency is quick to call out their fraud and where resolutions can include crippling consequences and individual liability. 

"In contrast, the agency is quick to deem large firms as 'legitimate' and apply a more soft-touch approach," he said. "AT&T's massive scam is a reminder that we must focus on the practices of a business, rather than the size of a business."

From what I've observed over the years, I think he's right—but I suspect it's mostly due to the quality of lawyers that large companies retain. 

That is, it's a lot easier to throw the book at someone who is pro se or represented by a local general litigator than to push around, say, Michael Kellogg and Mark Hansen of Kellogg, Hansen, Todd, Figel & Frederick or Ryan Sandrock of Sidley Austin—all of whom are part of AT&T's deep legal team.

Kellogg and Hansen did not respond to a request for comment.

AT&T spokesman Jim Greer in a statement said, "We couldn't disagree more with Commissioner Chopra's baseless characterization of the case. None of his allegations were ever proved in court. We were fully prepared to defend ourselves, but decided settling was in the best interests of consumers."

Still, the case was about more than consumer redress. It also established an important precedent at the U.S. Court of Appeals for the Ninth Circuit. 

Sitting en banc, the court in 2018 rejected AT&T's argument that the FTC lacked jurisdiction to bring the case.

Kellogg argued that Section 5 of the FTC Act specifically exempts "common carriers" like telephone companies from its coverage, placing them instead under the purview of the Federal Communications Commission.

But the Ninth Circuit didn't buy it, ruling that the common carrier exemption is activity-based, and that "the FTC may regulate common carriers' non-common-carriage activities."

"New technologies have spawned new regulatory challenges," wrote Judge Margaret McKeown for the unanimous en banc panel. "A phone company is no longer just a phone company….. Reaffirming FTC jurisdiction over activities that fall outside of common-carrier services avoids regulatory gaps and provides consistency and predictability in regulatory enforcement."

The holding is especially relevant now. The FCC during the Obama administration in its net neutrality rulemaking re-classified broadband service providers as common carriers—which for a few years presumably put them out of the FTC's reach.

But the FCC in the Trump administration voted to un-do the re-classification  with its Restoring Internet Freedom Order. Internet service providers once again are not common carriers—and the FTC is back to being the cop on the beat.