Patents, Business Change, and AT&T Redefine Net Neutrality

In the aftermath of last week’s Samsung/Apple legal debacle over patents (you can bet I’ll have something to say about that, soon), I’ve been thinking about another topic that pops up here, every now and again. Hello, AT&T? This is Net Neutrality calling, and we want our definition back.

AT&T’s land grab on the legal system and the English language makes me think about patents because to AT&T “net neutrality” is hard to define. As with patents, there’s as much room to decide what net neutrality means as AT&T’s lawyers can find room for, and this isn’t about wrong and right or the business of doing business. It’s about casting fear, uncertainty and doubt everywhere, and undermining the already-in-over-their-heads Federal Communications Commission, who when they defined Net Neutrality failed to cast the term well enough to shut down specious arguments from the AT&Ts of the communications world.

I’ve said it before: this is why I’m not an attorney.

AT&T has decided that unless you buy a particular data plan from them, your iPhone won’t be able to run Apple’s Facetime video chat software over the AT&T wireless network. With respect to my commentary on lawyers, this is incomprehensible; AT&T has a dwindling number of loyal, long-term customers still on unlimited data plans who could abuse the bandwidth-gobbling Facetime, but AT&T’s position isn’t limited to them. If you’re on a standard bandwidth-metered data plan with AT&T, where you pay for your bits, AT&T doesn’t want your money. AT&T only wants your bandwidth dollars if you’re using shared-bucket data plans.

Makes no sense, right? AT&T may want a way to circumvent the FCC’s Net Neutrality rules for those unlimited data customers, but why would they want to turn down overage charges from one group of customers while collecting them from another?

Frankly, it’s because AT&T has been as sloppy in the way they put this little scheme together as the FCC was in their inadequately-worded Net Neutrality decision.

If you take a look at AT&T’s position in this article from ReadWriteWeb, you’ll see the key points of AT&T’s redefinition of Net Neutrality:

1. FaceTime is available on Wi-Fi without any restrictions, so the AT&T says it isn’t preventing people from using the app.
2. AT&T is not blocking a competing service, because it doesn’t offer a video chat app.
3. AT&T goes on to argue that the FCC rules do not require carriers to make “preloaded apps” available, only downloadable apps that compete with their voice or video telephony services.

Let’s see how easy it is to refute those positions.

• AT&T claiming that Facetime being available over WiFi means that they aren’t stopping people from using the app is meaningless. When you’re on WiFi you aren’t accessing the AT&T network, so unless AT&T wants to make this about preventing Facetime from ever being installed on your iPhone they’re saying nothing
• AT&T (OK, Apple) installs Facetime for you, so “we don’t offer a competing video chat app” also means nothing
• The argument that because Facetime is preloaded on iPhones Net Neutrality doesn’t apply is a direct contradiction of the “we don’t offer a video chat app” position. Either Facetime is a competitor because Apple includes it on iPhones even though AT&T wants it excluded, or Facetime is a Apple-provide video chat app.

All lawyer speak. All meaningless distortions of reality. All a lot like what’s happening in the US Patent system.

The very nature of patents and well-defined business and legal documents is to define the issues that are related to them precisely enough to make misinterpretation difficult. This is something we do at Answer Guy Central; I know a bit about the topic.

AT&T’s Facetime position tries to exploit this. Oh, Please. This is no more a supportable position than a claim that Facebook’s NewsFeed patent is unique. It’s the reason nobody has tried to patent football formations. In the absolute simplest sense, it speaks to the very idea that business processes aren’t patentable (you know, unless they are).

Apple, AT&T . . . and the FCC . . . none of these entities are interested in business change; they’re practicing business confusion. And when you’re large enough or have monopoly positions you can get away with that.

But for the rest of us, business change is about thinking broadly enough to create, rather than to protect. Wanna talk about it?