[AT&T Samsung Galaxy S II Skyrocket SGH-I727] NativeTxn:
It is unlikely that a class action would be successful arguing that they cannot throttle you at all, as the contract language that someone pasted probably would be found to allow them to do that.

I think the better argument would be that we all sign the same contract regardless of where we live in the US, yet people subject to the same contract are treated differently when it comes to throttling since they apparently base it on the market you are in. At the end of the day, AT&T could/would argue that the language allows them to do it this way, so there is no guarantee that this argument would win (though I think it would have a better chance than just saying that they can't throttle period).

One thing I am certain of is that if there is a class-action to be had here, there will be (as I am sure there are more than a few lawyers in the country who have AT&T service) and that there are probably plenty of attorneys already aware of the situation and trying to figure out if they could head up a class action.

At the end of the day, I think it would serve everyone (customers and the company) well if AT&T would just come out and be explicit about how they determine the 5%, etc. Once there is clarity, it is much more difficult for people to complain.

And quite frankly, I'm not sure throttling per se has been the true issue, as I think most agree that they CAN throttle based on the terms of the contract, even if most also probably don't think they SHOULD throttle. I think the bigger issue is that there is no apparent rhyme or reason to who gets throttled, when, and at what levels (some people have reported being throttled as low as 1.5-2 GB and others have used 6+ GBs with no trouble), and there is no clarity on how they determine the "top 5%" (I had a CSR tell me that it was based on iPhone users because they thought that the amount of data iPhone users used was a pretty good gauge).

I personally feel that if they are going to throttle, they should:

1) Make it a nationwide standard (why should someone in Dallas get throttled at a lower or higher usage amount than someone in Atlanta solely based on the traffic use in the place where they live, or vice versa)

2) Make it explicitly clear how they determine the top 5% (e.g. is it based on iPhone users, it is all 3G, HSPA+, and LTE users combined, just LTE, etc) and since they supposedly base it on the previous "period" of data usage, state what time period they use (e.g. is it based on a calendar month, your billing cycle since everyone has different cycle start/end dates, etc.)

3) Send you a text or some sort of message at the beginning of each billing cycle as to what amount will constitute the top 5% for the new period (again, since they allegedly base it on prior period's usage and should therefore know what your 5% threshold will be for that particular cycle)

I live in DFW and I've never been throttled (knock on wood), but I still think that it would go a long way toward resolving some of the bitterness if AT&T would just offer a transparent, explicit policy for how and when they will throttle instead of just doing it without any true explanation of how the decision was made.