How Is This Not A Net Neutrality Violation, Sprint?

from the so-much-for-net-neutrality dept

While the United States' net neutrality rules are certainly better than nothing, we've noted a few times how they contain enough loopholes (and ignore enough hot button topics) as to be more than a little problematic. More specifically, they contain so much wiggle room they let ISPs of all stripes violate net neutrality -- just so long as they're a bit more creative about it. Verizon and Comcast were quick to highlight this when they began cap-exempting their own content, while still penalizing their competitors (without so much as a real peep from the FCC).

T-Mobile pushed these creative barriers further with Binge On, which exempts only the biggest and most popular video services from the company's usage caps (aka "zero rating"). This automatically puts thousands of smaller video providers, non-profits, educational institutions and startups at a notable market disadvantage, but by and large nobody outside of the EFF and academia seems to give much of a damn because a: ill-informed consumers are happy laboring under the illusion that they're getting something for free and b: the public (and by proxy media) is lazy and tired of debating net neutrality.

But the door being opened here leads to a monumental, potentially dangerous shift not only in how broadband service is purchased and sold, but in just how open the internet of the future is going to be.

Last week T-Mobile moved the bar even further with its new T-Mobile One plan, which provides 'unlimited' data, voice and text messaging for $70 per month. Users generally don't like the plan because it's technically more expensive than T-Mobile's previous plans. But it's also saddled with caveats, such as the fact that tethering (using your phone as a modem or hotspot) is throttled to 128 kbps, 'unlimited' technically means 26 GB, and by default all user video is throttled to 480p or 1.5 Mbps by default. Unless users pay T-Mobile a $20 monthly surcharge for HD quality.

Emboldened by T-Mobile and an utterly comatose FCC, Sprint has taken this idea even further, last week unveiling its own not-really-unlimited "Unlimited Freedom" plan with its own set of annoying caveats. Tethering is forbidden, "unlimited" actually means about 23 GB before your full connection is throttled, and by default all video is throttled to 1.5 Mbps, all games are throttled to "up to 2mbps" and all music streams are throttled at "up to 500kbps." That's a god-damned generous definition of unlimited by any measure.

But rejoice, this week Sprint came up with a "solution" for customers who, you know, would like all the services they use to actually work. The company has announced a new "Unlimited Freedom Premium" plan that raises all these arguably arbitrary limits -- if you're willing to shell out an additional $25 per month:
"This plan provides a premium quality mobile streaming experience with HD streaming videos at up to 1080p+, HD music streaming at up to 1.5 Mbps and streaming gaming at up to 8 Mbps."
Again, so we're clear: this is an ISP forcing users to pay more money if they want the services they consume to actually work properly. That's the exact sort of thing net neutrality rules were supposed to prevent. Yet here we are, dancing on a slippery slope, staring down an incredibly fractured, confusing, and potentially exploitable new paradigm for the already uncompetitive broadband sector. And frankly, nobody seems to give all that much of a shit. Either because they're bored of paying attention, or they can't see a few plays ahead on the chess match between net neutrality advocates and large ISPs.

If Sprint and T-Mobile can charge users premium to avoid video, game and music throttling, what prevents Comcast from charging users a premium if they want 4K video streaming to actually work? What stops AT&T from charging users a premium if they want their Steam games to download at full speed? The answer? Nobody, apparently, since the FCC has made it abundantly clear it believes that usage caps, zero rating, and pay-to-avoid-throttling schemes are just creative market experimentation. Except the only creativity on display here involves marketers convincing consumers to root against their own best, self interest.

As noted above, net neutrality violations are still perfectly legal here in the States, you just need a little creative showmanship when shafting the consumer. The FCC's Open Internet Order (pdf) is chock-full of "rules" that don't apply if you provide a bullshit-laden technical justification about how you're only throttling "for the health and security of the network." But congestion has always been used by the telecom industry to justify all manner of bad behavior, including unnecessary usage caps on captive customers. And regulators and the press can rarely be bothered to fact check these congestion claims (remember the exaflood?).

And while spectrum constraints on wireless networks are certainly real, that's no justification for the sea change. If your network can't actually handle unlimited data? Either raise prices transparently to pay for the necessary upgrades, or stop marketing "unlimited" services. What we don't want is the telecom sector with a generation of documented anti-competitive behavior under its belt dictating just how well services perform based on how much users are willing to pay. Because make no mistake, without vibrant, organic market competition (which is only marginally better in wireless) they will abuse the concept like an insatiable swarm of termites.

Initially, I assume both T-Mobile and Sprint will try to argue that this isn't that big of a deal, because users can always switch to metered plans that don't involve charging you more money for un-throttled services. At least until those other plans quietly disappear over a period of months, and paying a premium to actually use content the way it was intended is all the consumer has to choose from. And given that the majority of the public has no idea what a gigabyte even is, these new caveats and the horrible precedent they set will fly (and are clearly flying) right over their collective heads.

I understand that net neutrality is a convoluted and hyperbole-heavy debate that has gone on for more than a decade. As such there's clearly plenty of people happy to labor under the illusion that last June's FCC net neutrality win was the end of the conversation and they can take a nap. It's not, and they can't. We'll be fighting for an open internet for as long as ISPs keep trying creative ways to abuse the lack of last-mile broadband competition. In other words, forever.

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  • identicon
    Anonymous Wheeler Squeeler, 26 Aug 2016 @ 12:11pm

    It looks like Wheeler has been muzzled

    Somebody said something to someone. I don't think we'll see any more help on this front from the FCC. I think Wheeler had good intentions. So I'm putting my money on the FCC not doing anything else for us little guys. You know, the customers!

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

  • icon
    TasMot (profile), 26 Aug 2016 @ 12:13pm

    Maybe (or at least I hope) the FCC is giving the big ISPs enough rope to hang themselves here.

    And, another big maybe, the FTC is going to EVENTUALLY step in because of the false advertising. How many times are we going to have to go down the road that "unlimited" means one thing and it is not what is being delivered? Can the ISP's just rewrite the definition of words the way that law enforcement does to get anything they want?

    Or, maybe this is the same as the "best effort" that LEO's make when they stop somebody on a made up law just to create probable cause.

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

    • identicon
      Anonymous Coward, 26 Aug 2016 @ 12:37pm

      Re:

      Can the ISP's just rewrite the definition of words the way that law enforcement does to get anything they want?

      Why not, as the politicians are the leaders in redefining words.

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

    • identicon
      Saiph, 26 Aug 2016 @ 1:14pm

      Re:

      Maybe (or at least I hope) the FCC is giving the big ISPs enough rope to hang themselves here.

      You're kidding, right?

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

  • icon
    elemecca (profile), 26 Aug 2016 @ 12:40pm

    One plan to rule them all

    Initially, I assume both T-Mobile and Sprint will try to argue that this isn't that big of a deal, because users can always switch to metered plans that don't involve charging you more money for un-throttled services. At least until those other plans quietly disappear over a period of months, and paying a premium to actually use content the way it was intended is all the consumer has to choose from.


    T-Mobile has already done it. Starting September 6th, T-Mobile One is their only plan. You won't be able to sign up for or switch to a metered plan. Existing customers get to keep their plans for now, but we've seen how that goes with AT&T's continuing war on their grandfathered unlimited customers.

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

  • identicon
    Anonymous Coward, 26 Aug 2016 @ 2:20pm

    We're not dancing the edge of a slippery slope. We're well on our way down already.

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

  • icon
    ECA (profile), 26 Aug 2016 @ 2:21pm

    WHAT HAPPENED TO ALL THE CONSUMER LAWS??

    Lets ask something STUPID..

    Lately..People doing bad things get a knock on the door, by Police/corp goons/TSA/SWAT..

    Can we reverse this??

    Get the police to ENTER a corp, GRAB the CEO and OTHER corp heads, WALK them out arrested, into a crowd of CBS/NBC/FOX/INDEPENDENT news.. with a talking head, discussing WHy they are being taken into custody, to discuss WHAT the HELL they are doing??

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

  • icon
    freedomfan (profile), 26 Aug 2016 @ 5:49pm

    The deceptive marketing charge seems pretty straightforward here...

    ... and, obviously, my thinking that means that I know nothing of the legal criterion that justify deceptive marketing or false advertising charges.

    But, that case would seem to be pretty strong. The service that they are marketing as "unlimited" is very limited. And, not just in the sense that available technology puts limits on what can be reasonably offered. It's limited in a way that is so transparently artificial that the company itself markets another (upcharged) plan that is actually less limited.

    In other words, they can't even say, "Well, it's not unlimited unlimited, but it's as unlimited as it can be." Offering the other plan is effectively admitting that the base "unlimited" plan is not only more limited than required by technology, but there's so much of a market for a better option that they are selling it!

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

  • identicon
    Rana, 26 Aug 2016 @ 6:28pm

    Freedom Premium

    I wonder if they thought about how that sounds. Charging a premium for freedom. Freedom for those who can afford it.

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

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