Stanford law professor and net neutrality expert Professor Barbara van Schewick has filed a study with the FCC (pdf) that insists T-Mobile's Binge On program clearly violates net neutrality, "harms competition, innovation and free speech" and is "likely illegal." Across 51 pages, Schewick offers more than a dozen reasons why she's come to this conclusion regarding the program, which throttles all video services that touch the T-Mobile network to 1.5 Mbps, regardless of whether the content is streamed or directly downloaded.
"A core principle of net neutrality is that ISPs should not pick winners and losers online by favoring some applications over others," notes the study. "But that’s exactly what Binge On does. Customers have a greater incentive to watch videos that are included in Binge On than those that are excluded. As a result, providers in the program can be more successful than providers that T-Mobile leaves out."
And while Binge On may not be as ham-fisted as other zero rating efforts (like Comcast exempting its own streaming service from its caps, or Verizon requesting payment to make content cap-exempt), the precedent of letting carriers fiddle with traffic in this fashion is just as problematic, notes Schewick.
"The thirty-eight providers currently in Binge On deliver mostly commercial video entertainment – not user-generated, educational or non-profit video," she notes. "If T-Mobile continues to favor entertainment from commercial providers over other content, it turns the mobile Internet offered by T-Mobile into an optimal platform for commercial entertainment at the expense of all other speakers."
As it stands, the FCC's net neutrality rules contain three "bright-line" restrictions prohibiting ISPs from blocking, throttling (discriminating against specific applications or classes of traffic), and paid prioritization (charging apps or content for preferential treatment). But the rules also include a "general conduct rule" to prohibit practices that harm Internet openness but are not already banned by the bright-line rules. That can include zero rating, which isn't specifically banned but will be addressed on a "case-by-case basis."
"Based on the findings of this report, Binge On harms Internet openness as defined by the Order" and violates key net neutrality principles that the Open Internet rules are designed to protect," argues Schewick.
"Binge On puts T-Mobile in the position of a gatekeeper that picks winners and losers online, regardless of the ISP’s intentions," the report continues. "The program constrains how people use the Internet: It limits users’ ability to use the applications, content, and services of their choice. The program is not application-agnostic: It favors video providers included in the program over those that are not, commercial entertainment over other forms of video content, and online video over other kinds of Internet uses. And it violates the principle of innovation without permission."
"As a result, Binge On harms competition, innovation, and free speech– all harms that the general conduct rule is meant to prevent," states Schewick. "Taken all together, it is likely that Binge On violates the general conduct rule and is therefore illegal."
Of course the FCC still has to declare that Binge On violates net neutrality, and it's simply not clear that's going to happen. The FCC has gone out of its was to re-iterate that inquiries it's making of T-Mobile, AT&T, Comcast and now-likely Verizon are part of an "information exercise" and not a formal investigation. FCC boss Tom Wheeler himself has called T-Mobile's Binge On program "innovative" and "pro competition" despite complaints from the EFF that T-Mobile is throttling every video service that touches its network to a default 1.5 Mbps. By allowing users to "opt out," T-Mobile incorrectly believes it's tap-dancing over and around any problems.
Numerous countries (Japan, Slovenia, The Netherlands, Chile) banned zero rating outright in their own net neutrality rules to avoid the exact kind of slippery slope we now find ourselves camped out upon. The FCC thought it made sense to apply a case-by-case approach to zero rating so the industry could experiment with "creative" pricing, but that may be a problem when the very precedent set by zero rating opens the door to all manner of "creative" discrimination and anti-competitive shenanigans.
While T-Mobile's Binge On may be the "best" of a bad crop of zero rating ideas, the public may come to regret that the FCC didn't take a harder-line when it comes to preventing carriers from using arbitrary usage caps and zero rating as a competitive weapon.