FCC Makes It Clear It Thinks Some Net Neutrality Abuses Are 'Innovative' And 'Pro Competition'

from the down-the-slippery-slope dept

If you were wondering whether or not the FCC would bless T-Mobile's new controversial zero rating plans, agency boss Tom Wheeler has given a pretty good indication of which way the agency is leaning. As covered previously, T-Mobile's been aggressively experimenting with zero rating -- first by exempting only the biggest music services from its usage caps -- then more recently by announcing Binge On. Binge On exempts video services from T-Mobile's wireless data caps, but "optimizes" those streams, limiting them to 480p.

T-Mobile tap danced around net neutrality rather cleverly, by making the option something users can disable, while stating that any company that wants to participate can join, for free. The problem remains one of precedent: by opening the doors to carriers as middle men in this fashion, you're fundamentally changing the way the internet works. Companies now need to seek special permission from ISPs to ensure their traffic is on a level playing field. A small streaming company in Cleveland, for example, may not even realize it's being discriminated against, or that it needs to contact T-Mobile to stop it.

The pitfalls are nuanced, and consumers have generally been oblivious to the bad precedent thanks to the lure of "free data" (that's not really free, since usage caps are entirely arbitrary constructs to begin with). And now we can add FCC boss Tom Wheeler to the list of folks who apparently think abandoning a truly open internet is just a nifty idea:
"Wheeler, in a press conference following the FCC's November meeting, appeared to endorse the Binge On offering, calling it pro-competitive and innovative. "It is clear in the Open Internet order that we are pro-competition and pro-innovation and clearly, this meets both of those criteria," he said. "It is highly innovative and highly competitive."
But apparently to appease the six of us that see the potential pitfalls here, the FCC boss then turned around and suggested the agency will be keeping an eye on the program:
"He said the FCC would keep an eye on Binge On per the general conduct standard in those new open Internet rules, which allows the FCC to look at such business models on a case-by-case basis.

That rule, he elaborated, says a carrier "should not unreasonably interfere with the access to someone who is trying to get to an edge provider and an edge provider who is trying to get to a consumer. So, what we are going to be doing is watching Binge On, keeping and eye on it, and measure it against the general conduct rule."
Again, T-Mobile's program may not be the most offensive net neutrality violation ever seen, but the precedent remains horrible. While T-Mobile may be more consumer friendly than other carriers, the simple act of allowing zero rating opens the door to carriers like AT&T and Verizon that are decidedly less so. Meanwhile, Wheeler may be replaced by an FCC boss with an even more flexible interpretation of "innovation" (assuming they're not busy trying to dismantle the rules entirely). This potential for preferential discrimination is why Chile, Norway, Netherlands, Finland, Iceland, Estonia, Latvia, Lithuania, Malta and Japan all moved to prohibit zero rating in some fashion.

The FCC did e-mail me to note that the "Commission staff is working to make sure it understands the new offering," but Wheeler's comments (and previous FCC statements) make it pretty clear that the agency sees usage caps and zero rating as little more than creative pricing. In other words, the agency's telling ISPs: violate net neutrality, just be creative about it. As T-Mobile's program took root, the magenta-hued character that is T-Mobile CEO John Legere was quick to applaud himself:
I don't know. The slow but steady erosion of a healthy, neutral internet to the sound of thunderous applause?

Filed Under: binge on, competition, fcc, innovation, net neutrality, tom wheeler, zero rating
Companies: t-mobile


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  • icon
    That One Guy (profile), 25 Nov 2015 @ 7:13am

    If caps aren't a problem, nothing related to them is going to be

    The problem is that the FCC apparently sees caps as a good thing, rather than a blatant cash grab by introducing an artificial and entirely greed-based limit. If you see caps like that, then of course anything that allows customers to 'bypass' the artificial obstruction is going to be seen as a good thing.

    It's helping people avoid the (completely unnecessary) caps, what's not customer friendly about that? /s

    reply to this | link to this | view in chronology ]

  • icon
    Chronno S. Trigger (profile), 25 Nov 2015 @ 8:38am

    So, ISPs aren't allowed to have a blacklist, but they're completely allowed to have a whitelist.

    So instead of allowing all websites and degrading some, they degrade all and allow some.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Nov 2015 @ 7:37pm

      Semantics

      So, ISPs aren't allowed to have a blacklist, but they're completely allowed to have a whitelist.

      So instead of allowing all websites and degrading some, they degrade all and allow some.


      Yeah, it seems that it's all about semantics as far as the FCC is concerned.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Nov 2015 @ 8:50am

    brilliant!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Nov 2015 @ 8:58am

    Told you So

    The shit that I have been saying about not trusting the FCC and their 'Net Neutrality' is showing signs of happening.

    I hate that I am likely to be proven right, but we need REAL net neutrality... not the FCC's cocked up version of it where they pick and choose who wins and loses.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 25 Nov 2015 @ 9:16am

      Re: Told you So

      The problem isn't so much the rules as enforcing them. The best consumer-protection law in existence doesn't mean squat if the ones in charge of enforcing it are looking the other way when it's violated, and alternatively even a weak consumer-protection law can be sufficient if it's enforced well and consistently.

      "should not unreasonably interfere with the access to someone who is trying to get to an edge provider and an edge provider who is trying to get to a consumer.

      'Pay to bypass the completely unnecessary cap/limit' should absolutely be seen as violating the above for example, as it introduces obstacles in the path of both customers and service providers that exist solely for monetary gain, and have nothing to do with keeping the network clear.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Nov 2015 @ 10:08am

        Re: Re: Told you So

        No, the problem really are the rules. Enforcement is a permanent issue period.

        The FCC has written the rules that gives them too much flexibility in how to enforce them.

        Rules need to be clear not nebulous as some of them are that allows the FCC to "Arbitrarily" determine who is abusing or not bases on mental gymnastics.

        FCC needs to be passed through Congress, not a fucking regulatory agency where shit has even less of a chance of sanity.

        We all sit around watching congress give away all of its power and just think exactly nothing of it. it is terrible! That alone is reason enough to tell the FCC to screw on and instead enforce rules they are GIVEN to enforce so people can seek redress when they play fucking favorites!

        reply to this | link to this | view in chronology ]

        • icon
          Mat (profile), 25 Nov 2015 @ 10:46am

          Re: Re: Re: Told you So

          FCC needs to be passed through Congress, not a fucking regulatory agency where shit has even less of a chance of sanity.

          you really haven't seen the kind of stuff coming out of congress lately, have you?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 25 Nov 2015 @ 11:13am

            Re: Re: Re: Re: Told you So

            Yea I know, nothing much of any good, but that is how it is supposed to be. Regulatory agencies should be given the laws they should be enforcing, NOT making them up.

            Congress has essentially outsourced what their job and the constitution makes it DAMN CLEAR who has the power to write law and that every law must be signed by the president. Regulatory agencies are a complete short circuit of this process.

            We citizens are to blame for all of this by continuing to vote in the corruption that has caused all of this.

            reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 25 Nov 2015 @ 7:38pm

          Re: Re: Re: Told you So

          FCC needs to be passed through Congress, not a fucking regulatory agency where shit has even less of a chance of sanity.

          If it were up to congress to write the rules, I can guarantee you that if the rules were written at all(given how much they bicker like children), they'd have been tailor made by and for the cable companies, with utterly useless 'rules' and 'limits.

          In case you thing that's unrealistic, it's pretty much exactly what they tried to do when the whole Title II shenanigans were going on, proposing laughable rules that would have been even more pathetic than the previous ones.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Nov 2015 @ 9:22am

    What am I gonna watch first? Why, my favourite video platform! Youtu~ Oh... that one isn't covered?

    Well I guess I can catch up on some vids on faceboo~what do you mean they aren't covered either?

    reply to this | link to this | view in chronology ]

  • identicon
    PW97, 25 Nov 2015 @ 9:52am

    Wheeler playing the long game

    I still think Commissioner Wheeler is playing the long game here and letting the ISPs and carriers run with the bait.

    They are already showing that usage caps are made-up concepts for profit, which in turn will be used against them when the political climate is right.

    reply to this | link to this | view in chronology ]

  • icon
    toyotabedzrock (profile), 25 Nov 2015 @ 10:43am

    Someone should develop an app that proxies all the data the phone needs via an exempt video provider. All the download data could be encoded into a live video stream.

    That would stop the bs.

    reply to this | link to this | view in chronology ]

    • identicon
      aerilus, 27 Nov 2015 @ 2:48am

      Re:

      genius, have one video and it shows you how to use domain as proxy. "what do you mean i don't qualify you told the fcc anyone could do it?"

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Nov 2015 @ 1:01pm

      Re:

      Someone should develop an app that proxies all the data the phone needs via an exempt video provider.

      And just exactly which video provider is going to do this for you?

      reply to this | link to this | view in chronology ]

  • icon
    bureau13 (profile), 25 Nov 2015 @ 10:58am

    I don't see the problem with Binge On

    The issue with Music Freedom, or whatever they call it...I get it. Smaller, lesser-known or newer music service providers are at a disadvantage. Binge On is something different. Consumers agree to a lower-res video stream in order for it to not count against the data budget. Any video stream provider can potentially be included if they choose to. Tmo is not playing gatekeeper here, or artificially playing favorites, if they're giving consumers a boon for allowing a lower-res stream, and making that plan available to all providers.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Nov 2015 @ 11:04am

      Re: I don't see the problem with Binge On

      This is still a burden on small video providers, especially if they are not based in the US. They have to deal with the paperwork involved in getting onto the scheme, and corporations have the habit of making just asking consume hours of lawyer time.

      reply to this | link to this | view in chronology ]

    • icon
      Chronno S. Trigger (profile), 25 Nov 2015 @ 12:21pm

      Re: I don't see the problem with Binge On

      There is no way that T-Mobile is going to automatically down-convert any video that goes over it's network. They wouldn't pay for the hardware and bandwidth to do that. So, that means that the video provider will be forced to use T-Mobile's API (and follow their terms of use) to tell what videos need limited.

      You don't see a problem with this?

      T-Mobile isn't going to pay for the development time to add their API to the streaming service. T-Mobile isn't going to pay for testing of each and every streaming service to make sure they comply with the terms of use. And, T-Mobile is going to insist on being able to change their API at any time.

      You still don't see a problem with this?

      reply to this | link to this | view in chronology ]

  • identicon
    psiuuuu, 25 Nov 2015 @ 3:23pm

    I would like to think that...

    Hopefully he is mostly trying to be as "light-touch" as possible, to borrow a phrase, while still cracking down on the real idiocy we see from time to time.

    Of course, any Republican administration and he is gone, regardless. If a Democrat makes it in, he may crack the whip harder.

    Of course the current offerings from both parties resemble a flaming bag of dumps on the one one hand, or having a bag of sausages to eat on the other. So I dunno.

    reply to this | link to this | view in chronology ]

  • identicon
    Jeremy Rand, 25 Nov 2015 @ 5:25pm

    The actual issue is

    According to reports, the reason that T-Mobile isn't adding YouTube to the whitelist is because YouTube uses UDP to deliver some content, and T-Mobile's crappy inspection algorithms can only identify HTTP/HTTPS traffic [1]. Therefore, as a direct result of this policy, a strong disincentive is given to any video streaming company that wants to use UDP. This is anti-innovation, as it means that only T-Mobile-approved technologies can be used without counting toward the data usage cap. What happens when some new startup invents a new protocol that decreases costs or improves customer experience (let's say BitTorrent streaming), but which T-Mobile doesn't want to (or can't) identify? This situation (where an ISP picks winners and losers in the technology field) is exactly why net neutrality exists.

    [1] http://www.tmonews.com/2015/11/t-mobile-sheds-some-light-on-youtubes-absence-from-binge-on/

    reply to this | link to this | view in chronology ]


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