Stanford Study: T-Mobile's 'Binge On' Program Violates Net Neutrality

Recently, there has been quite a bit of a controversy surrounding T-Mobile’s Binge On program, which doesn’t count some video data towards customers’ data plans. A Stanford researcher, Barbara van Schewick, released a study concluding that T-Mobile’s Binge On is “likely illegal” and violates the FCC’s net neutrality rules.

Net Neutrality

Before the FCC passed its new net neutrality rules, the main argument for stronger net neutrality was to treat every “bit” as equal and not give certain companies easier access to customers than others. The telecom companies could do that by not counting the bandwidth usage of some services towards the users’ data plans.

This would give those services an unfair advantage, as users could transition to those services because their data isn’t being used, making it harder for the competing services to survive. This could be a problem especially for smaller content providers that may not be able to afford large fees that the telecoms may be requiring to join such programs.

Market Distortion

Van Schewick said that although users can watch an unlimited amount of video from Binge On participants such as Netflix, they can watch at most four and a half hours per month (or just nine minutes a day), from competitors’ services. This looks like a serious distortion of competition in the video market.

“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,” said van Schewick.

Picking Winners And Losers

Binge On and other programs like it also allow telecoms to pick who the winners and losers are in various content markets.

Van Schewick added: “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 has said that any video service can join as long as they meet certain requirements. However, those requirements are at least as bad as the initial requirements for Facebook’s “Free Basics” program. The video services must not use the UDP protocol, which for instance disqualifies YouTube, nor should they use encryption -- a requirement that should automatically be rejected by any service in 2016.

Van Schewick also pointed out the fact that although the number of participants in T-Mobile's Music Freedom program (its zero-rating program for music) has increased from seven to 40 since 2014, there are over 2,000 licensed online music streaming services. Some of the services that got in the program had to wait a year and a half. She said that in the past three months alone, Twitter users have asked T-Mobile to add 109 music streaming services that are not part of the program.

Her point is that no matter how “welcoming” these services are, there will always be some barriers to entry, which will hurt and distort competition. Net neutrality was supposed to be all about leveling the playing field, and such programs are doing the opposite of that.

She warned that other ISPs may start offering similar programs, entrenching even more the idea that the ISPs are the gatekeepers who pick the winners and losers in some markets, such music and video content. The era of "innovation without permission," the same era that has allowed all types of services to flourish on the Internet, could end.

Proposed Fixes

Van Schewick said that the Binge On program in its current form violates the recently passed net neutrality rules as well as the FCC’s transparency rules, because T-Mobile claims that the service offers unlimited video even though that’s not the case.

To fix these issues, she recommended that T-Mobile could make all video not count towards users' data plans, and not just the video from the Binge On member companies. The video would be served at lower bandwidths and quality, but it would be the users’ choice whether to watch videos like that and not have them count towards their data plan, or watch them in full quality and let those videos eat into their data plan.

This seems like a reasonable proposal, especially if the ultimate goal here is to lessen the strain on T-Mobile’s network from all the video watchers. However, unless T-Mobile converts the video itself, the way Opera does with its video compression technology, then it will not work for the services that are encrypted. Companies could probably find a way to recognize T-Mobile’s network and the users’ choice and serve that video at a lower quality, though.

The second proposal is to lower the speed for all video and other content after users reach their monthly caps. This way, T-Mobile could still claim that Binge On offers "unlimited video streaming." Contrary to what T-Mobile says, even the Binge On video isn’t truly unlimited right now. Users can watch unlimited Binge On video as long as they haven’t reached their monthly data caps through other Internet uses that aren’t zero-rated.

The third proposal is for T-Mobile to raise its data caps to better account for how much data people use these days. For instance, if most people use at least 3 GB of data on their smartphones every month, then the mainstream data plan should go from 2 GB per month to 3GB.

If van Schewick is right about T-Mobile violating the FCC’s rules, then it will now be up to the FCC to actually enforce the strong rules it fought so hard to pass. Otherwise, the ISPs could quickly learn that these rules are meaningless and may even experiment with other violations in the future.

Lucian Armasu is a Contributing Writer for Tom's Hardware. You can follow him at @lucian_armasu. 

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