Apple FaceTime Does Raise Issues, Just not "Net Neutrality"

Apple's FaceTime, and the charges some AT&T users might incur to use it, raises issues, but not of "network neutrality." AT&T has offered a "narrow" defense based on technical rules related to network neutrality.

Others might raise broader issues. Network neutrality rules, you will recall, codify the Federal Communications Commission's Internet freedom principles that dictate users have the right to use all lawful Internet apps, among other assurances.

Keep in mind that Apple's FaceTime app has generally been restricted to Wi-Fi use, in large part because of the amount of mobile network bandwidth the app consumes. As with the matter of "freedom of speech," the existence of some time, place and manner of use restrictions do not infringe the freedom being protected.

AT&T defends its new policy granting unlimited use of FaceTime on some of its mobile data plans, and not others, on the narrow grounds of compliance with the language of the FCC's network neutrality rules, namely that service providers may not lawfully block apps that compete with existing service provider offerings.

You might argue that a good lawyer will use the narrowest possible argument that clearly advances a particular line of legal reasoning, rather than a larger, more philosophical argument that embraces more aspects. AT&T logically uses a narrow construction based on the language of the FCC rules

Some of us would argue AT&T also has a larger argument. There have been, and can be, time, place and manner restrictions of several sorts on bandwidth-intensive apps that could degrade user experience for all other users. In the voice world, we are accustomed to outright blocking. That's what happens when a caller gets a "please try your call again later, all circuits are busy" recording when trying to place a phone call.

That's what happens when Twitter servers become overloaded. You see the "fail whale" and you can't use Twitter. In principle, the FCC bars deliberate blocking of lawful apps. The FCC does not prohibit or punish "over capacity" blockages that occur when servers get overloaded.

Nor do the FCC rules prescribe the business logic contestants might employ when selling various device features. Personal hotspot features are "blocked" on most networks unless a user pays a separate fee to enable such use.

In other words, network neutrality rules exist primarily to prohibit anti-competitive behavior, and not to prescribe the ways service providers decide to package and price features and capabilities. By definition, every service provider marketing policy can affect competition, in an open and transparent way. That is not something "network neutrality" even tries to prevent.

Any AT&T user can use Apple FaceTime on any Wi-Fi connection without incurring any additional charges. On some mobile data plans, the mobile network can be used. On some plans FaceTime cannot be used on the mobile network. The use of FaceTime is not "blocked."

But the manner of use is differential. Other suppliers can make different choices. None of the choices, except a complete inability to use FaceTime ("blocking" as a policy) are a net neutrality infraction, in a broad sense.