The T-Mobile US Binge On video service does in fact break network neutrality and so is illegal.
That's according to Stanford law professor Barbara van Schewick, who has gone to the trouble of writing 51 pages of analysis [PDF] over the controversial throttled service to reach her conclusion.
"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," argues the paper. "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."
The paper then methodically goes through all the claims and counterclaims that have emerged in the past two months, dissecting each and reaching the clear conclusion that despite the company's efforts and tweaks, it does in fact break the law.
That won't come as news to those who have read the FCC's Open Internet rules, or even those who have been following the saga, but you can bet that T-Mobile US's effervescent CEO John Legere is surprised to hear the conclusion.
So far, at least, he has managed to hold off insulting Ms. van Schewick, although it may only be a matter of time before another basement video emerges.
All about choice
Binge On launched in November, and allows T-Mobile US customers to watch unlimited amounts of video from Netflix, Hulu and other selected providers.
T-Mobile US says this is great for its customers. But the service met immediate resistance, not least from YouTube, which complained that its video was being throttled to 480p quality even though it wasn't a "partner."
T-Mobile US responded to that issue by saying it would make it possible to turn Binge On on and off – and then had to introduce a fix making that process much simpler to actually do.
"Binge On is a VERY 'pro' net neutrality capability," Legere railed last month. "You can turn it on and off in your MyTMobile account – whenever you want. Turn it on and off at will. Customers are in control. Not T-Mobile. Not content providers. Customers. At all times."
That is not van Schewick's main beef with the program though: her concern is that by differentiating at all, T-Mobile US is breaking the law.
"Even if T-Mobile could somehow add every single video provider to Binge On – large and small, commercial and non-commercial – the program would still violate net neutrality," she argues. "Binge On favors video streaming over all other Internet uses, even those that use the same amount of bandwidth or less. As long as Binge On gives special treatment to video as a class, it undermines the vision of an open Internet, where all applications have an equal chance of reaching audiences – and people, not ISPs, choose how to use the bandwidth available to them."
Just to ensure there are no hard feelings however, van Schewick lists a number of ways in which the mobile company could offer a similar service without breaking the law.
In place of the current Binge On, T-Mobile US could:
- Offer a zero-rated low-bandwidth mode at the same speed.
- Offer unlimited access to the entire Internet after their customers reach their cap, just at a slower speed.
- Increase monthly data caps on its capped plans to account for the average amount of video that people are watching.
There is no word yet from Legere – who is getting excited on Twitter about the company's Superbowl ads – concerning what he thinks about these ideas.
But, in case you are in any doubt, the paper concludes: "It is likely that Binge On violates the general conduct rule and is therefore illegal." ®