FaceTime Complaint Could Be First Major Test of FCC Net Neutrality Rules

Under the FCC rules, AT&T has 10 days to discuss the complaint with the three groups, Free Press, Public Knowledge and New America Foundation’s Open Technology Institute. If no resolution is reached, the three groups plan to file their complaint at the FCC, asking for expedited review, association officials said. The FCC Enforcement Bureau would then adjudicate the challenge, possibly with involvement of an administrative law judge. Whatever decision is reached could then be appealed to the full FCC. If the bureau decides to give the complaint expedited treatment, a decision could come within 45 days, officials said.

"The complaint follows the release of Apple’s latest operating system, iOS 6, which enables customers to use FaceTime over mobile networks,” the groups said in a news release. “Previously, FaceTime use was limited to Wi-Fi connections. AT&T has indicated that it will block customers from using FaceTime via mobile devices unless they subscribe to one of its new ‘Mobile Share’ plans.” FaceTime is a widely used video calling application.

"For the consumers that have AT&T and an iPhone and want to use this feature I say it’s pretty important,” Public Knowledge staff attorney John Bergmayer said in an interview. “It’s a basic feature of the phone. It’s integrated throughout the [operating system]. It’s very convenient to use. ... Also I think it’s important for precedential reasons. If AT&T can block this app from communicating with the network I think it would embolden them to assert even greater control over what apps people can use on their phones, not just iPhones, but Androids or any other phones.”

Bergmayer said the groups are asking AT&T a central question. “Verizon isn’t doing it, why are you?” he said. “Other carriers aren’t doing this. Why are you? We think it’s a violation of the rules. We think you're attracting a lot of negative publicity to yourself. We would like you to just adjust and reverse course. If they do, we don’t have to file a complaint.”

AT&T’s decision to limit use of FaceTime is a “clear cut violation” of the net neutrality rules, Free Press Policy Director Matt Wood told us. “We've always said that the mobile rules aren’t good enough in this Open Internet order that we have, but this seems to be a violation of the rules that we do have on the books,” Wood said. “I think AT&T’s defense got our attention as well, talking about whether an app is preloaded or not. If they're allowed to block FaceTime it’s not clear to me what they couldn’t block in terms of its operations. ... It’s pretty cold comfort if I'm allowed to download any application but then the ISP decides whether or not it works.”

ISPs do appear to be “pushing the envelope” trying to see what they can “get away with” under the net neutrality rules, Wood said, adding it gets back to the old complaint that carriers have one message for regulators and another for Wall Street. “Their incentives are pretty clear,” he said of carriers. “When [carriers] talk to Wall Street they talk about monetizing their old business lines while also monetizing data usage ... trying to get all of the value that they can out of all their business lines."

In an August blog, AT&T Senior Vice President Bob Quinn explained why AT&T was allowing the use of FaceTime only by some subscribers. AT&T’s actions do not violate transparency or anti-blocking rules, Quinn said (http://xrl.us/bnmsxw). “Our policies regarding FaceTime will be fully transparent to all consumers, and no one has argued to the contrary. There is no transparency issue here,” he wrote. “Nor is there a blocking issue. The FCC’s net neutrality rules do not regulate the availability to customers of applications that are preloaded on phones. Indeed, the rules do not require that providers make available any preloaded apps. Rather, they address whether customers are able to download apps that compete with our voice or video telephony services."

"Our public interest colleagues assume that all applications are equal in terms of their network impacts and requirements, a convenient public policy fiction that unfortunately has no basis in reality,” said Richard Bennett of the Information Technology and Innovation Foundation. “It’s also the case that mobile networks suffer variations in signal quality and congestion due to roaming that require more active management by carriers, as the FCC’s net neutrality rules recognize. Users who don’t care to purchase shared data plans on AT&T are free to use other video conferencing applications such as Skype and to switch carriers, so the interesting outcome from the technology perspective is going to be whether FaceTime on AT&T’s network performs better or worse than the alternate applications and networks that employ generic data plans. From the policy perspective, we want to see whether the market can effectively discipline carrier behavior in the long-term interests of users who not only want the ability to use leading-edge applications today but also want to enjoy faster, better, and cheaper networks in the future.”