Stanford Law Professor: T-Mobile’s ‘Binge On’ Violates Net Neutrality Rules

Last fall, T-Mobile introduced Binge On, an optional program that lets users stream certain video streams without counting the data against their monthly allotments. YouTube and others have accused the company of throttling data in order to make this happen, and a new report from Stanford University claims that T-Mo’s actions are in violation of federal “net neutrality” rules.

The FCC’s 2015 Open Internet Order includes the so-called net neutrality guidelines, which prohibit broadband providers (wireline and wireless) from either throttling or prioritizing data based on its source or the type of content.

In a report [PDF] released this morning, Prof. Barbara van Schewick of Stanford Law School argues that Binge On violates this core neutrality tenet.

“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,” writes van Schewick.

T-Mobile has maintained that Binge On does not violate the neutrality rules because participating providers do not pay to be part of the program. But because Binge On does have the ability to downgrade video streams, participating services must work with T-Mobile to meet certain technical requirements.

But this requirement, contends van Schewick, is significant enough to be discriminatory.

“[T]he technical requirements published on T-Mobile’s website are substantial,” she writes. “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.”

The professor acknowledges that some providers “can join easily,” but claims that a “significant number” will need 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 FCC has yet to make a determination on whether the practice of “zero-rating” — the notion of not charging for data from certain providers — violates the neutrality rules. However, van Schewick is clearly of the mind that such policies unfairly favor certain providers over others.

“Providers in Binge On enjoy a competitive advantage, not based on merit but simply because T-Mobile added them to its program,” she argues. “Video creators are also more likely to use Binge On providers over other platforms for their video content, further distorting competition.”

Prof. van Schewick also calls out T-Mobile for marketing Binge On as the ability to “stream unlimited video.” Yes, you can watch all the Netflix you want on Binge On — but only if you haven’t maxed out your data plan on other content.

So if you watched a lot of YouTube videos in a month, or maybe watched a live feed of breaking news from CNN or some other broadcaster, and used up all of your available data, even your Binge On videos may be slowed down to barely usable 2G speeds.

And, by van Schewick’s calculations, it might not take much to reach that limit where all your content is throttled. She gives the example of a T-Mobile customer with a 3GB monthly plan. Watch around nine minutes of YouTube a day (around 4.5 hours total in a month), and van Schewick says you’d hit your monthly allotment. Even at 10GB/month of data, the report claims you’d hit your limit watching around 30 minutes per day of non-Binge On video.

“Most people use their mobile Internet connection for more than watching video, so the amount of video from other providers that customers can realistically watch in a month before they reach their cap is likely to be much lower,” notes Van Schewick.

What’s not clear in the report is whether those calculations are based on full-quality video streams from non-participating providers. T-Mobile has confirmed that it “optimizes” all video feeds for Binge On users, regardless of the video’s source.

This has been YouTube’s major gripe with T-Mo, alleging that T-Mobile should not be messing with streams that aren’t part of Binge On. For its part, T-Mobile has claimed that YouTube shouldn’t complain because the downgraded stream allows Binge On users to access more content using less data.

The report makes the point that if Binge On users are aware that their access to Netflix via the program could be negatively impacted by hitting the data cap using other non-Binge On services, they may deliberately avoid those non-participating content providers. Customers may also feel like they have to upgrade to a plan with more data.

“Describing Binge On as ‘unlimited’ video streaming might mislead consumers in a way that violates the FCC’s transparency rule,” writes van Schewick, referring to another section of the Open Internet Order that prohibits ISPs from making inaccurate statements about their service. “As the FCC has explained in the past, the transparency rule requires any public statements about the service to be accurate; it is not sufficient to describe a service accurately only in more detailed disclosures or in the fine print.”

Additionally, van Schewick contends that Binge On “stifles free expression” by including mostly subscription services in the program. Almost all of the participating content providers charge for access to their content, while the largest providers of free video content — YouTube, Vimeo, Facebook — are not included in Binge On.

“In its current form, Binge On turns the mobile Internet delivered by T-Mobile into a space for watching commercial entertainment,” writes van Schewick. “It gives commercial speakers an advantage over non-commercial speakers that use alternative video streaming platforms. And it hurts T-Mobile’s subscribers as listeners, making it harder for them to benefit from the breadth and depth of video content on the Internet.”

We’ve reached out to T-Mobile for comment on the report and will update if we hear anything.