AT&T FaceTime restrictions may be at odds with FCC net neutrality rules

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AT&T already announced that it would be rolling out shared data plans for their new mobile customers, but it looks like the separation between subscribers won’t just be how their data is distributed–application use may have limits as well.

We reported last month that AT&T may be planning on limiting access to FaceTime for iPhone owners based on their data service. Unfortunately for AT&T, it looks as though this may be in violation of FCC rules on net neutrality.

What we know about the limits

As of last week, AT&T made it known that using FaceTime over its 3G and 4G mobile network — a feature that will become available with iOS 6 in the fall — will be available only for shared data plan users. Users who are gripping tight to their tiered and unlimited plans will only be able to use the video chat app while connect to a Wi-Fi network. As wireless carriers are known to do, this limit in functionality is likely a push to get users to sign up for the new shared plans.

What we know about the law

According to Public Knowledge’s senior staff lawyer John Bergmayer (via NY Times), this attempt to prohibit use of a particular application puts AT&T in violation of the FCC’s rules on net neutrality. He refers to the Open Internet Rules, specifically one that states that mobile providers cannot “block applications that compete with the provider’s voice or telephony services.” The fact that the FCC used the term “telephony” aside, this raises a legitimate question as to the legality of AT&T’s app block. Mr. Bergmayer stated that there is “no technical reason why one data plan should be able to access FaceTime, and another not.”

While the FCC is currently not making a comment on this case, there is some precedent already set on the issue that may give us an indication as to how this will play out. Back in July, the FCC ruled that Verizon couldn’t block tethering applications in the Google Play store. Verizon tried to institute that blockage because apps made available a service that Verizon was charging for. Because of the FCC’s ruling, tethering apps are now available for Verizon customers.

What it means for other service providers

If AT&T is allowed to put up a firewall to prevent certain users from accessing an individual application, a somewhat startling statement will be made. Does this mean that other applications will see a similar block, like Skype on Windows Phones or other third party applications on any given service? It conjures up a somewhat frightening scenario in which app access becomes a tiered system. Only top data subscribers get access to top apps. If AT&T puts limits up on a game like Angry Birds, there could be riots in the street, but what about less popular texting apps or products like Google Voice, which directly conflict with AT&T’s services?

At the moment, this FaceTime debate only concerns AT&T users. Sprint has stated that it has no intention of charging extra for FaceTime access. Verizon has also not made any indication that it will put similar limits on iOS 6’s flagship video chat program. If nothing else, this may just give AT&T iPhone owners a reason to leave for another carrier. Then again, iPhone users have lived with Wi-Fi only FaceTime for this long. Maybe they don’t really need to video chat on 3G or 4G.