New Report To FCC Details How Binge On Violates Net Neutrality

Stanford Law professor Barbara van Schewick, one of the leading scholars on net neutrality, has filed a report with the FCC detailing how T-Mobile's Binge On clearly violates net neutrality. As we've been highlighting, Binge On has numerous problems when it comes to net neutrality, and appears to clearly violate some of the FCC's rules. There's also the fact that T-Mobile flat out lied about it and claimed that it was "optimization" when it's really throttling. The 51-page report by van Schewick details the problems with Binge On in great detail, noting that it falls afoul of the FCC's transparency rules, that it unfairly picks winners and losers and that it harms competition. The core argument:

Binge On undermines the core vision of net neutrality: Internet service providers (ISPs) that connect us to the Internet should not act as gatekeepers that pick winners and losers online by favoring some applications over others. By exempting Binge On video from using customers’ data plans, T-Mobile is favoring video from the providers it adds to Binge On over other video. T-Mobile says that it does not intend to become a gatekeeper on the Internet: It says Binge On is open to all legal video streaming providers at no cost, as long as they can meet some “simple technical requirements.” The idea is that any discriminatory effects of Binge On disappear as more providers join the program. However, the technical requirements published on T-Mobile’s website are substantial. They categorically exclude providers that use the User Datagram Protocol (UDP), making it impossible for innovative providers such as YouTube to join. They discriminate against providers that use encryption, a practice that is becoming the industry standard. While some providers can join easily, a significant number will need to work with T-Mobile to determine whether their service can be part of Binge On. Many will have to invest time and resources to adapt their service to T-Mobile’s systems. The smaller the provider, the longer it will likely take for T-Mobile to get to it. The result: Binge On allows some providers to join easily and creates lasting barriers for others, especially small players, non-commercial providers, and start-ups. As such, the program harms competition, user choice, free expression, and innovation.

What's perhaps even more interesting is that van Schewick includes in the report alternatives that T-Mobile could have adopted that would have created similar plans that actually benefit consumers without messing up net neutrality:

Binge on in its current form violates net neutrality. However, T-Mobile could offer alternative innovative plans that benefit customers and allow the ISP to compete without violating net neutrality. For example, T-Mobile could offer customers a zero-rated low-bandwidth mode at the same speed as Binge On, but contrary to Binge On, customers would be able to use this mode to watch video or do anything else online. It would be their choice. Alternatively, T-Mobile could allow customers unlimited access to the entire Internet after customers reach their cap, just at a slower speed – the same speed currently offered through Binge On. After reaching their cap, customers could watch video or do anything else online; again it would be their choice. This option offers customers truly unlimited video, unlike Binge On. Contrary to advertising, Binge On video is limited: Customers can watch video included in the program only until they reach their monthly data cap through other Internet uses that are not zerorated. As such, advertising Binge On as “unlimited” video might violate the FCC’s transparency rule, which requires ISPs to accurately describe their service. In contrast, this alternative option would allow T-Mobile to offer “unlimited video streaming” that stands up to its name and respects net neutrality. Finally, T-Mobile could increase the monthly data caps on its capped plans to account for the average amount of video that people are watching. Customers could use that additional bandwidth to do anything online, including watching video. Again, it would be their choice. All of these alternative plans are entirely consistent with net neutrality.

Of course, the remaining question is still the really big one: will the FCC actually do anything about Binge On... Van-Schewick-2016-Binge-on-Report-20160129