The Great Tethering Debate

Verizon recently took some heat from the FCC for its hard stance on restricting tethering between mobile devices and other accessories.

A lot of readers (mostly non-lawyers) are interested in my view (preferably a legal opinion) on tethering. Dedicate fans of The Droid Lawyer blog will know I’ve discussed tethering, and even recommended a couple apps, and particularly FoxFi, but I haven’t given an actual, true, you-won’t-go-to-jail-if-you-tether stance. Nor will I. As every lawyer know, and hopefully you learned as a 1L, “the law” is never black or white. There’s always a shade of grey. Therefore, most lawyers are reluctant to talk in absolutes. Sure, we’ll talk in “I believes” or “I thinks”, but, unless your attorney wants a malpractice lawsuit, you’ll never hear, “guaranteed.”

So, with that caveat in place, I don’t believe you’ll ever go to jail because you tether your phone using apps available in Google Play. The bigger issue though is how will your carrier handle your use of tethering apps, and will your carrier drop your coverage because you’re tethering?

For me, tethering isn’t a concern. I switched to “Big Red’s” Share Everything plan, which includes tethering provisioning from Verizon. Though not every carrier has a share everything feature, I believe many will swarm that way in the very near future.

What many users don’t realize is that Verizon “got popped” by the FCC for its restrictions on band use and the way phones/applications access and use the LTE band, not on its policies regarding tethering. I suspect, because I’m not a communications law afficianado, that the two would probably be interpreted the same, but I can see a fine line of distinction.

That said, many states enacted statutes protecting consumers. User could, in theory, argue that any broad restrictions on how users deplete their data plan, is an unfair trade practice. Theoretically, the user could argue that they purchased “unlimited” data, and therefore, should be able to use that data how they see fit, whether it be accessing the spectrum via their mobile phone, or using their phone as a gateway for a PC to connect to the gateway. In truth, the rules and laws are probably more complicated and restrictive.

Fundamentally though, I think the issue of whether you provider will “bust” you because you tether without paying for the tethering “privilege” is as simple as reading your customer agreement. I suspect, because I haven’t poured over mine in awhile, that your agreement grants you a license to access the spectrum, that is subject to the provider’s guidelines and restrictions.

In the end, and without much resolution from me, I doubt, unless you’re a high data consumer, your wireless carrier will drop you because you’re using FoxFi or some other app to tether your device. As always though, I don’t know, and I always encourage you to pay for the services or apps.

I’m interested to know your thoughts on the subject, especially if you’re a communications or consumer law specialist. What do you think? Is the FCC settlement restricted solely to the way the devices access the LTE spectrum and not the way the carriers manage the access? Leave your comments, or shoot me an email.

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