AT&T FaceTime policy vs. FCC Net neutrality: What happens next?

A coalition of public advocacy groups announced Tuesday intentions to file a formal complaint with the Federal Communications Commission (FCC) against AT&T’s decision to block FaceTime video chat calls over its cellular network for certain customers. The groups say AT&T is in violation of the FCC’s Net neutrality rules.

The new version of FaceTime, which launches on Wednesday as part of iOS 6, allows users to make calls over their 3G or 4G LTE wireless service instead of only over Wi-Fi like the previous version. However, AT&T will only allow customers who sign up for its new “Mobile Share” data plans to use FaceTime over their cellular network. AT&T subscribers who have older unlimited or tiered data plans are stuck with Wi-Fi only FaceTime.

Neither Verizon nor Sprint, the other two major U.S. carriers that offer Apple devices, plan to impose such a restriction.

The complaint against AT&T

The coalition, which includes Free Press, Public Knowledge, and the New America Foundation’s Open Technology Institute, informed AT&T of their plan to file a complain in a letter (PDF) published on Tuesday. The groups say that AT&T’s restrictions on FaceTime usage violate the FCC’s “No Blocking” provision, which states that companies may not “block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.”

“Making mobile use of the application available only to those customers who pay for unlimited voice and text messages harms individuals and innovation alike,” reads the letter. “We ask instead that AT&T make this core feature of the popular iPhone and iPad devices available to all of its customers, in compliance with the Open Internet rules that ‘preserve the Internet as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission.'”

AT&T’s stance

AT&T did not immediately respond to my request for comment. However, the company insisted in an August 22 blog post that its FaceTime restrictions do not violate the FCC’s Net neutrality rules on the grounds that FaceTime comes pre-installed on Apple iPhones and iPads, and thereby is not subject to the same rules as apps that customers must choose to download themselves.

“The FCC’s Net neutrality rules do not regulate the availability to customers of applications that are preloaded on phones… Rather, they address whether customers are able to download apps that compete with our voice or video telephony services,” wrote Bob Quinn, AT&T Senior Vice President of Federal Regulatory and Chief Privacy Office. “AT&T does not restrict customers from downloading any such lawful applications, and there are several video chat apps available in the various app stores serving particular operating systems… Therefore, there is no Net neutrality violation.”

Questions, questions, questions

At this juncture, we are left with more questions than answers. The biggest question, of course: Is AT&T in violation of the FCC’s Net neutrality rules? It’s impossible to say at this point (the FCC will have to make that call), but based on the wording of both the rule itself and AT&T’s argument for why it’s not breaking the rule, I am leaning toward “yes.”

The rule states that mobile providers may not “block applications.” This is unfortunate wording. Were the rule to say that these companies may not “block the functionality of applications,” or “the downloading of applications,” or a combination of the two, then we wouldn’t be sitting here wondering the strength of AT&T’s argument. After all, AT&T is clearly blocking a functionality of the FaceTime app for some customers — nothing unclear about that. But it is not blocking the application altogether. Furthermore, the rule does not differentiate pre-installed apps from apps customers download at their own discretion, a distinction that gives AT&T’s stance a beating heart.

So basically, the issue boils down to what “block applications” means. If the FCC were to decide that it means a mobile provider may not block any functionality of an app like FaceTime, then AT&T would more likely be in violation. If it were to decide the phrase means something else, then the company may very well be in the clear.

However, even if the FCC asserts the broadest interpretation of the rule, AT&T may still be on the right side of the regulations. The rule also states that enforcement is “subject to reasonable network management.” And it is quite possible that AT&T’s reason for limiting FaceTime over cellular is because its network cannot yet handle the load. As AT&T’s Quinn said in his post, the company “will be monitoring the impact the upgrade to this popular preloaded app has on our mobile broadband network,” which suggests AT&T engineers are not yet sure what to expect.

Like I said, we’re left with nothing but questions.

How does Apple play into this?

Given AT&T’s reasoning that FaceTime is preloaded, and therefore abides by different rules than apps we have to download ourselves, Apple could easily clear things up by simply excluding FaceTime as a default on iPhones and iPads. Apple has not yet responded for my request for comment, so I can’t claim to know its plans. But leaving out FaceTime seems like a move Apple would avoid, as it could result in far fewer people using the app, among other unforeseen consequences. Plus, this is essentially AT&T’s problem, not Apple’s. So don’t hold your breath for Cupertino to solve this one.

What happens next?

First up, AT&T must decide whether to risk action by the FCC over this issue. After all, the entire reason the groups informed AT&T of their intent to file a formal complaint is that they want AT&T to change is policy voluntarily.

“Our ultimate goal in this process is for AT&T to stop blocking FaceTime in violation of the Open Internet rules,” Jodie Griffin, a staff attorney for Public Knowledge, told me in an email. “We are just at the beginning of this process now: we gave notice [on Tuesday], so AT&T has 10 days [from Tuesday] to reverse course. Assuming AT&T does not change its FaceTime-blocking policy, we will then file a formal complaint at the FCC.”

If AT&T refuses to change its policy, then things get more complicated. The FCC will get involved, and decide if AT&T is in violation of its rules. Were the FCC to make such a decision, it may then force AT&T to about face on its FaceTime policy — but at this point, that remains a big “if.”

“The most direct way for the FCC to make AT&T reverse its policy is to confirm that AT&T’s conduct is prohibited under the Open Internet rules and order AT&T to stop blocking FaceTime,” said Griffin. “That said, it is also possible that public outcry like critical press coverage could convince AT&T to back down prior to the FCC’s decision.”

What can you do?

AT&T customers who are not yet on a Mobile Share plan have a number of options, regardless of all this legal hoopla. These options include:

Upgrade to a Mobile Share plan
Switch to Verizon or Sprint, which won’t block FaceTime over cellular for anyone
Just use FaceTime over Wi-Fi
Download Skype for iPhone or iPad, which basically does the same thing as FaceTime, and will work over AT&T’s cellular network

Conclusion

AT&T has roughly nine days from today (Wednesday, September 19) to decide if it wants to change its policy on FaceTime over cellular functionality. If it doesn’t, the groups’ complaint will be filed with the FCC, which must then decide whether its rules have been broken. In other words, this could take a while. Skype is looking better already.

Question mark image via rvlsoft/Shutterstock

AT&T called to task on FaceTime blocking, now what?