New Report To FCC Details How Binge On Violates Net Neutrality

from the and-john-legere-will-respond-with-curses dept

Stanford Law professor Barbara van Schewick, one of the leading scholars on net neutrality, has filed a report with the FCC detailing how T-Mobile's Binge On clearly violates net neutrality. As we've been highlighting, Binge On has numerous problems when it comes to net neutrality, and appears to clearly violate some of the FCC's rules. There's also the fact that T-Mobile flat out lied about it and claimed that it was "optimization" when it's really throttling.

The 51-page report by van Schewick details the problems with Binge On in great detail, noting that it falls afoul of the FCC's transparency rules, that it unfairly picks winners and losers and that it harms competition. The core argument:
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 says that it does not intend to become a gatekeeper on the Internet: It says Binge On is open to all legal video streaming providers at no cost, as long as they can meet some “simple technical requirements.” The idea is that any discriminatory effects of Binge On disappear as more providers join the program. However, the technical requirements published on T-Mobile’s website are substantial. 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. While some providers can join easily, a significant number will need to work with T-Mobile to determine whether their service can be part of Binge On. Many will have 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 result: 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.
What's perhaps even more interesting is that van Schewick includes in the report alternatives that T-Mobile could have adopted that would have created similar plans that actually benefit consumers without messing up net neutrality:
Binge on in its current form violates net neutrality. However, T-Mobile could offer alternative innovative plans that benefit customers and allow the ISP to compete without violating net neutrality. For example, T-Mobile could offer customers a zero-rated low-bandwidth mode at the same speed as Binge On, but contrary to Binge On, customers would be able to use this mode to watch video or do anything else online. It would be their choice.

Alternatively, T-Mobile could allow customers unlimited access to the entire Internet after customers reach their cap, just at a slower speed – the same speed currently offered through Binge On. After reaching their cap, customers could watch video or do anything else online; again it would be their choice. This option offers customers truly unlimited video, unlike Binge On. Contrary to advertising, Binge On video is limited: Customers can watch video included in the program only until they reach their monthly data cap through other Internet uses that are not zerorated. As such, advertising Binge On as “unlimited” video might violate the FCC’s transparency rule, which requires ISPs to accurately describe their service. In contrast, this alternative option would allow T-Mobile to offer “unlimited video streaming” that stands up to its name and respects net neutrality.

Finally, T-Mobile could increase the monthly data caps on its capped plans to account for the average amount of video that people are watching. Customers could use that additional bandwidth to do anything online, including watching video. Again, it would be their choice. All of these alternative plans are entirely consistent with net neutrality.
Of course, the remaining question is still the really big one: will the FCC actually do anything about Binge On... Van-Schewick-2016-Binge-on-Report-20160129

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  • identicon
    Anonymous Coward, 29 Jan 2016 @ 12:11pm

    The big missing net neutrality violation is that is discriminates against anyone who runs their own servers , virtual or co-located.

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

    • identicon
      Doug D, 29 Jan 2016 @ 12:21pm

      Re:

      The big missing net neutrality violation is that is discriminates against anyone who runs their own servers , virtual or co-located.

      In theory, it does not. I've actually begun the process of getting my own video content that I stream from my own house zero-rated. Nothing I've encountered so far has indicated that I don't qualify.

      (But, I also have not made any progress yet.)

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

      • identicon
        Anonymous Coward, 29 Jan 2016 @ 12:27pm

        Re: Re:

        What happens when 1 million people request zero rating?
        What about foreigners who have an audience in the US?

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

        • identicon
          Anonymous Coward, 29 Jan 2016 @ 12:49pm

          Re: Re: Re:

          What happens when 1 million people request zero rating?
          What about foreigners who have an audience in the US?


          The rules are subject to change at any time, at T-Mobile's whim.

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

      • icon
        PRMan (profile), 29 Jan 2016 @ 12:48pm

        Re: Re:

        In practice too.

        If a guy on Slashdot is to be believed, he applied for Music Freedom on his home FLAC music server and it was approved.

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

        • identicon
          Anonymous Coward, 29 Jan 2016 @ 1:22pm

          Re: Re: Re:

          I sorta doubt it, unless he either 1) jumped through some hoops, or 2) they've changed the rules since then. This is on their music freedom FAQ:

          "I want to know if my favorite application is eligible to be added, how do you define ‘Streaming Music Services’?
          Commercial music streaming services provide licensed content from various sources. Sources may include some or all of the following platforms: platforms serving digital rights management-restricted content from record labels, aggregated live radio platforms, or other commercial platforms offering streaming music content.
          Excluded services include but are not limited to:

          Music streaming sources from private or unlicensed sources.
          "

          (emphasis mine)

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

      • identicon
        Anonymous Coward, 29 Jan 2016 @ 12:56pm

        Re: Re:

        Ha! let us know when you get somewhere with that...

        I emailed tmobile to request that my own servers be included in their music freedom service and basically got ignored.

        Why would they treat me any different with binge on?

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

  • icon
    Kal Zekdor (profile), 29 Jan 2016 @ 1:21pm

    Ha!

    A quote from the report:
    In sum, Binge On is aptly named: it feels good in the short-term but harms consumers in the long run.

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

  • icon
    DannyB (profile), 29 Jan 2016 @ 1:53pm

    I think T-Mobile's John Legere would have some questions

    Who the F*** are you Stanford Law professor Barbara van Schewick?

    Why are you stirring up so much trouble?

    And who pays you?

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

  • identicon
    Glenn, 29 Jan 2016 @ 6:10pm

    Optimization, throttling... po-tay-to, po-tah-to

    Uhhh, I think T-Mo is in business for the sake of its customers, not its competition. So, if a new feature which the majority of its customers like happens to not benefit its competition... job well done!

    Get back to me after you've pursued Comcast, Verizon, and at&t for *actual* violations of net neutrality (not to mention outright fraud).

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

    • icon
      That One Guy (profile), 29 Jan 2016 @ 10:00pm

      Re: Optimization, throttling... po-tay-to, po-tah-to

      Graciously creating an option that allows customers to bypass some of the artificial restrictions that T-Mobile implemented is no more 'customer friendly' than punching someone and offering them a hand up afterwards.

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

    • icon
      Wyrm (profile), 29 Jan 2016 @ 10:30pm

      Re: Optimization, throttling... po-tay-to, po-tah-to

      What a joke.
      First, T-Mo is in business for its own sake, not that of its customers.
      Second, what in the paper suggests that they should "favor their competitors"?
      Lastly, if binge on is bit am actual violation of net neutrality, nothing is.

      If you never want to be waken up to net neutrality issues, then just go back to sleep and live in your happy little dream world.

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

  • identicon
    BrainDustBunny, 30 Jan 2016 @ 2:00pm

    Short Attention span.

    Not just a few years ago there was no FCC regulating (sic) the web. Now via TROJAN "net neutality" horse there is and now there are nothing BUT problems.

    PROBLEM #1 The FCC IS the problem.

    Besides they USED TO be busy with regulating POWER and FREQUENCY in the PUBLIC INTEREST.

    Look how well that's going. With the public spectrum mostly commercial. I told you they would be a disaster the day the traitors tore down their mission statement.

    Defund or DE-ACTIVATE this waste of protoplasm.

    We DON'T NEED THE FCC. -- SHOW ME IN THE CONSTITUTION WHERE WE NEED THEM.

    We need FREEDOM instead.


    think about it.
    our kids should be soldering hacking and learning transmitters and receivers

    There would be NO ELECTRONIC WASTE as the kids would desolder and recycle the parts needed to LEARN ELECTRONICS or fix their crap at home.

    Lazy do it for me is what is goin on here and CORPORATE FASCISM has crept in to offset.

    Time to flush it. It's smelling too much now.

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

  • icon
    Whatever (profile), 31 Jan 2016 @ 8:34pm

    Not feeling it

    This is one of those situations where absolute net neutrality has it's pluses and it's minuses, both for consumers and the companies.

    The effects of absolute net neutrality (all traffic, same speed, absolutely agnostic, no over the top services, no promotions, no nothing) would be to create sort of grey carrier companies, all with essentially the same service at the same levels and similar prices. Their only two competition points would be service areas and price. With the service areas quickly filling in across the US, the competition on network availability has already gone away. Can you hear me now? That's no longer a question for most Americans.

    So then competition is on price. The problem here is that it doesn't take a genius to realize that a race to the bottom on price won't improve the bottom line for companies. If you have to drop your price 25% to get new customers, will you get enough new customers to justify the cuts? Since most Americans are already using mobile and committed to one or the other company, pricing to move them (and the counter pricing to move them back or take others) isn't going to boost anyone's bottom line.

    The potential with grey box full neutral / no extras carriers is that they decide not to compete on price, and over time the prices either remain high or even drift higher rather than lower.

    The second potential is that the companies choose instead to invest in higher network speeds at a higher price point, raising the speeds (yeah!) but pushing the bill way up there (boo!), and not doing as much for the people using existing 3G or 4G services.

    Things like Binge On are differentiating services. The difference between T-Mobile and AT&T or whatever is what they offer aside from the generic, net neutral grey box service. The service certainly offers perks for the clients and sets one carrier apart from the others in terms of offerings to the public. It might even be worth more...

    The only problem I have is with capping others. Artificially creating a difference in service speeds isn't a good idea. If they can play more fairly in that regard, I think the zero rated service is a plus for consumers in enough ways to make it worth keeping.

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

    • icon
      JP Jones (profile), 1 Feb 2016 @ 1:15am

      Re: Not feeling it

      I'm not sure your "absolute net neutrality" scenario reflects what net neutrality actually is. At no point are all service providers required to offer the same speeds. If I want to by a 5 Mbps service, or a 25 Mbps service, net neutrality has no effect on that.

      And, even if we somehow made all carriers only offer the same speed (why?), it still wouldn't reflect the actual speeds you get online. There are many factors that influence speed online, from network congestion to physical distance from the servers to bad weather to the speed of the server you're connecting to, depending on your location and internet type. It would be virtually impossible for ISPs to guarantee a single speed for "all sites."

      I actually have the opposite issue with caps. I have no issues with tiered bandwidth. This makes technical sense; a faster transfer rate uses up more bandwidth, decreasing (relatively speaking, and depending on usage) the overall bandwidth available for other customers. In fact, bandwidth is the single biggest limiting factor to ISPs and expanding bandwidth (and corresponding data transfer rates) is the biggest expense that ISPs incur outside of infrastructure fees, taxes, and electricity.

      Data caps, on the other hand, make no sense to me. An ISP is not limited in the total amount of data it can transfer in a month, only in how much data it can transfer at any point in time. In other words, the size of the pipe and how fast the water is flowing matters...the water source itself is unlimited. This may seem like a subtle difference but it has huge implications for the way internet pricing works.

      The "theory" behind data caps is that someone with a finite amount of 'water' will naturally ration it more than someone with unlimited 'water'. If you feel you have to ration your data usage, you are less likely to use more of your 'pipe', or bandwidth. A finite amount of data is easier for most people to understand than bandwidth, and thus data caps were born.

      They had other advantages for ISPs. First of all, data caps are completely arbitrary, and don't exist as a real limitation for ISPs. This meant they could promise all kinds of ridiculous bandwidth options with the confidence they could just throttle the people "using" the most data (no actual resource is used), and since the people transferring the most data are likely the same ones using the majority of the bandwidth, they could promise high and then never have to worry about being required to fulfill that promise. And since the data caps were imaginary anyway they could easily offer a tiered service that didn't require any new infrastructure. It's a pretty sweet deal for the ISPs.

      None of that really has to do with net neutrality, but to me the fact that they are offering "unlimited data" (data is always unlimited for an ISP since they aren't the endpoint of a transfer) for certain high bandwidth services only serves to highlight how full of crap they've been about data caps. After all, streaming video is one of the higher data use functions...while compressed, you still download the entire video during the course of viewing. So if we can give unlimited data for watching movies, what is stopping you from giving it in general?

      Net neutrality means to me that I can get up to my 25 Mbps regardless of what website I visit; so if I go to CNN.com I have the same potential max speed as when I visit techdirt.com. But it makes sense that I would spend more for a bigger/faster pipe, so if I want 50 Mbps I need to pay more than the guy with a 5 Mbps speed that's using a comparatively tiny portion of the overall network at any given time. But creating arbitrary data caps and then choosing people to bypass your made-up limitations is ridiculous.

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

      • icon
        Whatever (profile), 1 Feb 2016 @ 4:57pm

        Re: Re: Not feeling it

        The thing is, technology is such that all of the mobile carriers (and wire line for that matter) will end up offering about the same connection speed, the same availability, etc. The difference between companies in the future won't be speed or connection, because everyone will be playing from about the same technology point.

        What is means is that your 5mps or 25mps service from all of the companies will be about the same. They will all have about the same peering, they will all have about the same sort of network, and so on.

        In other words, with true net neutrality, the performance of your ISP / mobile carrier will end up being about the same no matter who you are with. They will have the same peering, technology, and connections, give or take.

        "Net neutrality means to me that I can get up to my 25 Mbps regardless of what website I visit"

        In the real world, it doesn't work like that. Between your "neutral" ISP and each of those destinations is any number of jumps and steps, and various delivery technology that improves or hurts the speed at which you will receive data. Edgecasting, caching, cloud networking... there are so many ways that content can be delivered.

        As for datacaps, it's the difference between the size of the pipe and the amount of water you can take each month - or similar to your electrical connection at home. You generally pay a minimum amount each month for the connection and a set amount of power, and you pay more if you use more than that amount. Your connection to the grid likely supports 200amps (modern service), but your basic allowed power comes nowhere near to allowing you to use that full connection at all times. If you do, you will be over the cap and you will have to pay more.

        Don't confuse "how fast" with "how much".

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

    • icon
      Ninja (profile), 1 Feb 2016 @ 3:49am

      Re: Not feeling it

      Their only two competition points would be service areas and price.

      Ummm, no? They can offer guaranteed uptime, guaranteed speed (ie: you will get at least 50% of your nominal speed), they can offer DNS filtering to avoid malware and the likes, they can offer QoS at the service level (ie: you choose what kind of traffic to prioritize over the rest) etc. There's plenty an ISP can do to be better than the competition. Price is one of the factors.

      So the rest of your comment is basically bull.

      Things like Binge On are differentiating services.

      I thought I should emphasize: this is bullshit. They are only "differentiating services" because ISPs are already setting arbitrary caps and being general assholes instead of selling the speeds (or the pipe size).

      Artificially creating a difference in service speeds isn't a good idea.

      It's not artificial. It's natural. You use a portion of the pipe, you pay for it. The amount of data you can squeeze trough is measured by the speed.

      You are completely wrong.

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

      • icon
        Ninja (profile), 1 Feb 2016 @ 3:53am

        Re: Re: Not feeling it

        In time: I pay like 10% more for the same speed in my ISP than the closest competitor. Why? Because said competitor offers slower upstream and because my ISP offers much more stable connections. So where's the race to the bottom?

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

      • icon
        JP Jones (profile), 1 Feb 2016 @ 9:01am

        Re: Re: Not feeling it

        Yay, someone else understands why data caps are basically scams. Sometimes I feel like I'm explaining the world is round to a bunch of people who have been convinced it's flat, and no amount of "look, LOOK at the ship coming up on the horizon!" yelling makes any difference.

        I think it comes down to taking advantage of the fact that people for some reason think of the internet like electricity, in which your usage of it is directly related to the output of the utility (I won't get into why this doesn't actually apply to electricity companies either, since output tends to be set regardless of customer use, but this is the way most people seem to understand it).

        A better analogy is (somewhat ironically) cable TV. Cable charges you by the channels...in other words, how much access you can have. They don't charge you by viewing time, because regardless of how much shitty TV you watch, the back end resource is not being consumed. To be fair, cable companies don't really deal with bandwidth in the same way, but the concept of having to expand infrastructure to deal with capacity rather than throughput is very similar.

        Basically ISPs are getting away with charging you for your channels and how many hours you watch TV, even though the latter metric is basically irrelevant to their infrastructure. If you're an ISP, this is pretty cool, but if you're a consumer with even a basic understanding of the mechanisms involved, it's completely ridiculous.

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

  • identicon
    Anonymous Coward, 2 Feb 2016 @ 5:25am

    Well simply removing data caps and the bandwidth lie would be a cure all.

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


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