I’m still not convinced the FCC really has the mandate to put in place net neutrality rules, but even so, it’s quite amazing to watch AT&T try to tap dance around them, while clearly violating both the spirit and the letter of the policies. The latest issue has to do with Apple’s Facetime video chat. While earlier rumors that AT&T would charge for using the app proved untrue, it did announce that the app would only be available for those paying for a higher level of service (which may effectively be the same thing). The usual parties quickly raised a stink, highlighting how AT&T appears to be violating the rules:

AT&T has now hit back, claiming that the complaints are “knee jerk” and they’re not doing anything wrong.

As far as I can tell, AT&T’s defense is two-fold:

1. It believes that there is a loophole in the net neutrality rules in that it does not apply to preloaded apps, and they can set whatever access rules for such apps that they want:
   

   
   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.
   

2. It believes that as long as some other competing apps are available, they can restrict the apps they want to restrict.
   

   
   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. (I won’t name any of them for fear that I will be accused by these same groups of discriminating in favor of those apps. But just go to your app store on your device and type “video chat.”) Therefore, there is no net neutrality violation.
   

That’s a very interesting interpretation of these things, but doesn’t just create a loophole, it creates a giant vortex through which AT&T could restrict a huge number of apps just by pointing out that other such apps exist — even if they’re awful and no one uses them.

Of course, all of this is why we’ve argued for nearly a decade that the whole “net neutrality” fight is a red herring, anyway. The telcos are always going to find their own loopholes and ways around the rules (which they helped create anyway). The whole fight over net neutrality is not the problem. It’s a symptom of the real problem: a lack of serious competition in the marketplace. Get more competitors out there, and increase the fight over customers, and AT&T can’t get away with such moves.

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