T-Mobile’s Binge On May Run Afoul of Net Neutrality Rules

T-Mobile’s Binge On streaming video service violates Net neutrality rules, according to a report authored by Barbara van Schewick, director of The Center for Internet and Society at Stanford Law School.

The Binge On service, says the report, is problematic for the following reasons:

• It doesn’t offer unlimited video streaming, raising transparency concerns;
• It gives participants a competitive advantage;
• It harms competition and stifles free expression;
• It is discriminatory due to its substantial technical requirements;
• It favors video streaming over other Internet uses; and
• It creates a slippery slope.

The report points to three alternatives that would not endanger Net neutrality: a zero-rated low-bandwidth mode, truly unlimited video, and more data for everyone.

At the Heart of the Controversy

The Stanford report represents the latest argument in the already-heated debate over whether Binge On does indeed infringe Net neutrality.

In defense of T-Mobile, its standards “don’t appear to be onerous,” said Rob Enderle, principal analyst at the Enderle Group.

“Much like requiring a shirt and shoes to eat in some restaurants, T-Mobile is free to set conditions to use a service — particularly if it’s free — if they have a reason that isn’t, at its core, discriminatory,” he told the E-Commerce Times.

The company throttles all video, not just the zero rated video on Binge On, the Electronic Frontier Foundation has charged.

That brought a sharp response from Legere, followed by a torrent of criticism that eventually led him to apologize.

Binge On is a free benefit that consumers can turn on or off at will, which makes it pro-Net neutrality, Legere maintained.

However, it is turned on by default.

The company uses proprietary techniques to detect video, determine its source, identify whether it should be free, and adjust streams for viewing on handheld devices, he said.

Potential partners only have to do a minor amount of technical work to help T-Mobile identify their video data reliably, Legere insisted.

“‘Throttling’ is not an engineering term,” pointed out Doug Brake, telecom policy analyst at the Information Technology and Innovation Foundation.

T-Mobile has to slow down video traffic, but “that’s a tradeoff to allow them to offer unlimited streaming,” he told the E-Commerce Times. “It’s incredibly misguided to say this is throttling and, therefore, bad.”

Carriers “don’t have the capacity or the financial capability to build out networks to meet the pent-up demand for access to free video, and they’re trying to do it in a way that will keep Net neutrality advocates happy,” Brake continued.

T-Mobile’s argument is that requiring Binge On participants to use compatible technology “is no different than demanding that all telephones on the public switched telephone network have to use the same standards for touchtone dialing,” remarked Mike Jude, a research manager at Frost & Sullivan.

However, “the FCC isn’t talking about tech standards — it’s talking about discrimination,” he told the E-Commerce Times.

T-Mobile on Thursday made it easier for consumers to disable Binge On. It also added new partners, including Amazon, Fox News and Univision.

The ‘Fait Accompli’ Maneuver

“By virtue of the Net neutrality rules, T-Mobile’s a Title II telecoms provider, which means they can’t discriminate,” observed Frost & Sullivan’s Jude.

Restricting technologies available on the Internet by placing requirements on access means the company “is in fact violating Net neutrality,” Jude contended, because it is “providing a pipeline but putting a gateway in front of it.”

The United States Federal Communications Commission will take van Schewick’s contentions seriously, Jude suggested, “because the argument lends validity to their rules, and they won’t pass up any opportunity to establish precedent.”

An appeal against the FCC’s Net neutrality order is before the courts, but “if people tacitly agree,” Jude explained, “then the FCC could argue that maybe it’s not within their purview, but it’s a fait accompli. That approach has been used before.”