The speed reductions and service restrictions in effect under Defendant’s throttling program are not determined by real-time network congestion at a particular cell tower. Throttled customers are subject to this reduced speed even if they use their smartphone at a time when Defendant’s network has ample capacity to carry the customers’ data, or the use occurs in an area where the network is not congested. Once customers have been throttled during a given billing cycle, Defendant caps their download speed until the end of the billing cycle, at which time Defendant restores the data speed for these customers to full speed.Since October 2011, Defendant has throttled its customers more than 25 million times, affecting more than 3.5 million unique customers. When a customer is throttled, the customer’s data speed is reduced, on average, for the last twelve days of the customer’s thirty-day billing cycle.Defendant has numerous alternative ways to reduce data usage on its network that do not involve violating its promise to customers. One alternative would involve Defendant requiring existing unlimited data customers to switch to a tiered data plan at renewal. Defendant considered and rejected this approach in part because of concern that renewing customers would switch providers rather than switch to one of Defendant’s tiered data plans. Another alternative would involve Defendant introducing its throttling program at renewal, with disclosures at point of sale. Defendant considered and rejected such an alternative, in part because it “[a]pplied to all customers” and would not let Defendant “isolat[e] communications to [the] heaviest users.” Yet other alternatives might include limited, narrowly tailored throttling programs that are consistent with Defendant’s contracts, advertising, and other public disclosures.
At the same time that Defendant has been throttling unlimited mobile data plan customers who exceed 3 or 5GB of data usage during a billing cycle, Defendant has been offering individual tiered mobile data plans for data usage of at least 30GB per billing cycle. Defendant does not throttle its tiered mobile data plan customers, regardless of the amount of data that a tiered mobile data plan customer uses.