Well, this has really turned into quite a week for T-Mobile CEO John Legere, huh? First, his lies about BingeOn throttling were exposed. Then he doubled down on the lie insisting that BingeOn wasn't throttling despite clear evidence that it is. Then, he attacked EFF for exposing his lie. All the meanwhile, T-Mobile spokespeople were confirming that the company is, absolutely, slowing down all video traffic.
In light of recent events and comments made by your CEO, John Legere, we have decided to halt our participation in Binge On and disable our traffic shaping rules for the time being. As per the agreement, please consider this 24 hours notice that 4Stream.TV will no longer participate in the program.
As net neutrality supporters and EFF Members, we encourage you to be more honest and transparent about the issue and develop a program that we can be proud to participate in.
Kudos to Patrick Hampson and Aaron Zufall for making that decision.
Of course... the unfortunate truth, as we now know from all of this, is that even once they've decided not to participate in the program it doesn't change the fact that their videos will get throttled.
from the they're-wrong-about-the-throttling,-maybe-not-on-the-jerk-thing dept
On Monday we wrote about T-Mobile flat out lying about the nature of its BingeOn mobile video service -- and after a couple of days of silence, the company has come out swinging -- by lying some more and weirdly attacking the people who have accurately portrayed the problems of the service. As a quick reminder, the company launched this service a few months ago, where the company claimed two things (though didn't make it entirely clear how separate these two things were): (1) that the company would not count data for streaming video for certain "partner" companies and (2) that it would be "optimizing" video for all users (though through a convoluted process, you could opt-out).
There were a bunch of problems with this, starting with the fact that favoring some partner traffic over others to exempt it from a cap (i.e., zero rating) is a sketchy way to backdoor in net neutrality violations. But, the bigger issue was that almost everything about T-Mobile's announcement implied that it was only "partner" video that was being "optimized" while the reality was that they were doing it for any video they could find (even downloaded, not streamed). The biggest problem of all, however, was that the video was not being "optimized" but throttled by slowing down video.
Once the throttling was called out, T-Mobile went on a weird PR campaign, flat out lying, and saying that what they were doing was "optimizing" not throttling and that it would make videos stream faster and save users data. However, as we pointed out, that's blatantly false. Videos from YouTube, for example, were encrypted, meaning that T-Mobile had no way to "optimize" it, and tests from EFF proved pretty conclusively that the only thing T-Mobile was doing was slowing connection speeds down to 1.5 Mbps when it sensed video downloads of any kind (so not even streaming), and that actually meant that the full amount of data was going through in many cases, rather than an "optimized" file. EFF even got T-Mobile to admit that this was all they were doing.
So that makes the response of T-Mobile execs yesterday and today totally baffling because rather than actually respond to the charges, they've doubled down on the blatant lying, suggesting that either it's executives have no idea what the company is actually doing, or that they are purposely lying to their users, which isn't exactly the "uncarrier" way that the company likes to promote.
We'll start with the big cheese himself, CEO John Legere, whose claim to fame is how "edgy" he is as a big company CEO. He's now released a statement and a video that are in typical Legere outspoken fashion -- but it's full of blatant lies.
The video and the typed statement are fairly similar, but Legere adds some extra color in the video version.
Let's parse some of the statements. I'll mostly be using the ones from the written statement as they're easier to cut and paste, rather than transcribe, but a few from the video are worth calling out directly.
I’ve seen and heard enough comments and headlines this week about our Binge On video service that it’s time to set the record straight. There are groups out there confusing consumers and questioning the choices that we fight so hard to give our customers. Clearly we have very different views of how customers get to make their choices -- or even if they’re allowed to have choices at all! It’s bewildering …so I want to talk about this.
Of course, this is a nice, but misleading attempt to frame the conversation. No one is complaining about "giving choices to consumers." They're complaining about (1) misleading consumers and (2) providing a worse overall experience by throttling which (3) directly violates the the FCC's prohibition on throttling. The next part I'm taking from the video itself, rather than the printed statement, because Legere goes much further in the video, including the curses, which magically don't show up in the printed version:
There are people out there saying we’re “throttling.” That's a game of semantics and it's bullshit! That's not what we're doing. Really! What throttling is is slowing down data and removing customer control. Let me be clear. BingeOn is neither of those things.
This is flat out wrong and suggests Legere doesn't even know the details of his own service. As the EFF's tests proved (and the fact that YouTube videos are encrypted should make clear) T-Mobile is absolutely slowing down data. In fact, EFF got T-Mobile to confirm this, so Legere claiming it's "bullshit" is... well... bullshit!
But he's playing some tricky word games here, claiming that throttling is not just slowing down data, but also removing customer control. That's (1) not true and (2) also misleading. For all of Legere and T-Mobile's talk about "giving more options to consumers" or whatever, they're totally leaving out the fact that they automatically turned this on for all users without a clear explanation as to what was happening, leading to multiple consumer complaints about how their streaming videos were no longer functioning properly -- even for users on unlimited data plans.
Customer choice? Sure they could "opt-out" after through a convoluted process that many did not understand. But T-Mobile made the choice for all its users, rather than providing a choice for its customers to make.
Mobile customers don’t always want or need giant heavy data files. So we built technology to optimize for mobile screens and stream at a bitrate designed to stretch your mobile data consumption. You get the same quality of video as watching a DVD, but use only 1/3 as much data (or, of course, NO data used when it’s a Binge On content provider!). That's not throttling. That's a huge benefit.
Again, this is both wrong and misleading. There is no optimization. Legere is lying. They are 100% slowing down the throughput on video when they sense it. The EFF's tests prove as much. Yes, for some video providers when they sense lower bandwidth, they will downgrade the resolution, but that's the video provider optimizing, not T-Mobile. T-Mobile is 100% throttling, and hoping that the video provider downgrades the video.
But in cases where that doesn't happen then it doesn't save any data at all (the EFF test confirmed that the full video file still comes through, just slower).
Also, note the play on words "You get the same quality of video as watching a DVD." At first you think he's saying that you get the same video quality overall, but he's not. He's saying as a DVD, at 480p, which is lower than the 1080p that many HD videos are offered at. And that's what many people are complaining about -- that they'd like to watch videos at the full 1080p, but T-Mobile made the choice that they can't do that unless they go through a convoluted process to turn this off.
Rather than respond to any of this, Legere then claims that "special interest groups" and Google are doing this.... "to get headlines."
So why are special interest groups -- and even Google! -- offended by this? Why are they trying to characterize this as a bad thing? I think they may be using Net Neutrality as a platform to get into the news.
Wait, what? Google -- the same Google that absolutely refused to say anything publicly at all about net neutrality for years during the debate suddenly wants to get into the news by jumping on the net neutrality bandwagon? Does Legere have any idea how ridiculous that sounds? And it's not like Google has a problem getting into the news. And what about EFF and others? Does he really think they need to get extra news coverage?
But note the facts here: at no point does Legere respond to the actual charges leveled against the company. He then concludes by yelling at everyone for daring to complain about this:
At T-Mobile we're giving you more video. More choice. And a powerful new choice in how you want your video delivered. What's not to love? We give customers more choices and these jerks are complaining, who the hell do they think they are? What gives them the right to dictate what my customers, or any wireless consumer can choose for themselves?
Nice. I'm part of the contingent complaining about this and I'm also a T-Mobile customer... and the CEO just called me a jerk while telling me he's fighting for his customers? Really now?
And again this whole statement is blatantly misleading. The "choice" was made by T-Mobile for all users, and getting out of it involves a convoluted process that most don't understand and where none of this was made clear to end users. Beyond violating the FCC's "no throttling" rule, I wonder if it also violates the FCC's transparency rules as well, in which they are required to be much more upfront about how the data is being treated.
Also, the statement above is from the video where we're described as "jerks," but in the written version it leaves out the "jerks" claim, but also includes the following bit mocking YouTube for letting users choose to change the resolution on videos:
YouTube complained about Binge On, yet at the same time they claim they provide choice to customers on the resolution of their video. So it's ok for THEM to give customers choice but not for US to give our customers a choice? Hmmm. I seriously don't get it.
But that's bullshit also. YouTube's choice option there is a clear pulldown on every video shown, so that a user just needs to click on the video their watching and set the resolution. T-Mobile's is a process that's not clear at all, with some users reporting they had to call in and get T-Mobile customer service to turn BingeOn off for their account. To compare the two situations is completely bonkers.
As far as I can tell, Legere either doesn't understand what his own company is doing technically, or knows and is purposely misrepresenting it. Neither of those look good and go against the entire "uncarrier" concept they keep pitching. I'd expect better as a T-Mobile customer than being told that I'm a "jerk" for pointing this out.
And it appears he's not the only one among senior execs at T-Mobile who still don't realize what their own company is doing. On Wednesday at a Citigroup conference, T-Mobile's Chief Operating Officer Mike Sievert
spewed some more nonsense suggesting he, too, has no idea what his own company is doing:
At a Citigroup investor conference Wednesday, T-Mobile executives shot back, saying YouTube’s stance is “absurd.” YouTube is owned by Alphabet Inc. “We are kind of dumbfounded, that a company like YouTube would think that adding this choice would somehow be a bad thing,” said T-Mobile Chief Operating Officer Mike Sievert. He said YouTube hasn’t “done the work yet to become part of the free service.”
Taken at face value, that comment makes no sense. If YouTube hasn't done the work yet to become a part of the free service than why the fuck is T-Mobile slowing down its videos? YouTube wasn't complaining about "adding this choice." YouTube was complaining about direct throttling of video content by T-Mobile, in clear violation of the FCC's prohibition on throttling.
Sievert and Legere both don't seem to understand (1) what YouTube and users are complaining about or (2) what his own company is doing. That's... troubling, given that these are the CEO and COO of the company. It really seems like T-Mobile execs might want to spend some time talking to its tech team to understand the fact that the only thing T-Mobile is doing to video is throttling it down to 1.5 Mbps, rather than any actual "optimization" before spewing more nonsense and calling their own customers "jerks." And, they might want to realize that their claim that this is all "bullshit" is actually complete bullshit. And that their bullshit may very well violate the FCC's rules.
Big companies often have a way of tap dancing around the truth. It's rarely lying, because they will choose their words carefully, in a manner that clearly misleads or distorts, but is not necessarily outright lying. T-Mobile, however, appears to be flat out lying. We recently wrote about the charges from YouTube that T-Mobile was throttling YouTube videos as part of its Binge On program that zero rates video on mobile phones so it doesn't count against data caps. We noted the problems with this program when it launched, but YouTube's claims take it even further.
Again, the program supposedly "optimizes" video streams down to a lower resolution, with the promise that partner videos will not count against T-Mobile's data caps. However, YouTube pointed out that it is not a partner and its videos were being throttled, in clear violation of the clear "no throttling" rules from the FCC. T-Mobile took exception to my post about it and demanded corrections and clarifications, making a few different claims. After investigating the claims, I can say (1) that we will not be clarifying or correcting anything in the original post and (2) more importantly, it appears that T-Mobile is flat out lying in some of its claims. It's not dancing around the truth, it is claiming things that are simply untrue. This is the key claim that T-Mobile's PR person made to me:
Using the term “throttle” is misleading. We aren’t slowing down YouTube or any other site. In fact, because video is optimized for mobile devices, streaming from these sites should be just as fast, if not faster than before. A better phrase is “mobile optimized” or “lower resolution.”
This is clearly not true. While you can have a semantic debate about whether "throttling" is "optimizing," the facts with T-Mobile are pretty clear: it is NOT optimizing YouTube videos at all. It is 100% throttling them.
When Binge On first launched without YouTube as a partner, many people asked why, and T-Mobile's VP of Engineering, Grant Castle, explained that the reason was because it could not identify YouTube videos, since nearly all YouTube traffic is encrypted. Thus, T-Mobile admitted that it had no way to "optimize" YouTube videos:
T-Mobile says the problem is technical. The software it is using to deliver streaming video at lower-definition quality needs to be able to identify the incoming traffic as being video as opposed to, say, photographs or email. It can’t always do that with YouTube.
Most YouTube traffic uses a protocol called HTTPS, which T-Mobile can detect, but some portions may be using a less-used protocol called UDP that the wireless company has more difficulty reading, according to Grant Castle, vice president of engineering at T-Mobile. That means the carrier isn’t certain about the format of some streams coming from YouTube.
“YouTube is a little difficult,” said Mr. Castle.
Thus, the only thing that T-Mobile can do for many YouTube encrypted streams is not to "optimize" it at all, but to flat out throttle it down to speeds around 1.5 mbps. You can see this in the tests done by Dualsim.us and the following video.
Remember how T-Mobile in their message to me said that the "optimized" videos should show up "just as fast, if not faster than before." Yeah, that's bullshit. Watch the video below (I start the video about 5 minutes in -- the first five minutes mostly just show that the two phones are both on T-Mobile's unlimited network with similar speed connections -- at which point the video comparison is shown):
As you can see, rather than "just as fast, if not faster than before," what you see for the throttled -- not "optimized" -- video is, instead, something much slower. That's because T-Mobile appears to downgrade the data flow from ~12 Mbps down to something like 1.4 or 1.5 Mbps.
That's absolutely 100% throttling. There is no "optimization" going on because T-Mobile cannot optimize those videos, since they're encrypted.
T-Mobile is lying. Flat out lying.
And... in a bit of perfect timing, just as I was completing this post, I see that EFF has published the results of its own technical tests of BingeOn, which also confirm that there is no "optimization" here -- and got T-Mobile to admit it was lying. It's purely throttling:
Our last finding is that T-Mobile’s video “optimization” doesn’t actually alter or enhance the video stream for delivery to a mobile device over a mobile network in any way. This means T-Mobile’s “optimization” consists entirely of throttling the video stream’s throughput down to 1.5Mbps. If the video is more than 480p and the server sending the video doesn’t have a way to reduce or adapt the bitrate of the video as it’s being streamed, the result is stuttering and uneven streaming—exactly the opposite of the experience T-Mobile claims their “optimization” will have.
Given the difference between what T-Mobile implies they do and what we found, we contacted them to get clarification. They confirmed that they don’t do any actual optimization of video streams other than reducing the bandwidth allocated to them (and relying on the provider to notice, and adapt the bitrate accordingly).
In fact, the EFF study compared a hash of the download to a version that was on the server and found the files were identical (i.e., no "optimization" -- just purely throttling). Again, this is the exact opposite of what T-Mobile's PR person told me in demanding a correction. T-Mobile is lying.
EFF also discovered that T-Mobile's earlier statement that it can't detect encrypted video is also misleading, as the company now claims it can:
The second major finding in our tests is that T-Mobile is throttling video downloads even when the filename and HTTP headers (specifically the Content-Type) indicate the file is not a video file. We asked T-Mobile if this means they are looking deeper than TCP and HTTP headers, and identifying video streams by inspecting the content of their customers’ communications, and they told us that they have solutions to detect video-specific protocols/patterns that do not involve the examination of actual content.
Finally, EFF realized that even if you're just downloading the video (i.e., not streaming, but downloading for later viewing), you STILL get throttled:
The first result of our test confirms that when Binge On is enabled, T-Mobile throttles all HTML5 video streams to around 1.5Mps, even when the phone is capable of downloading at higher speeds, and regardless of whether or not the video provider enrolled in Binge On. This is the case whether the video is being streamed or being downloaded—which means that T-Mobile is artificially reducing the download speeds of customers with Binge On enabled, even if they’re downloading the video to watch later. It also means that videos are being throttled even if they’re being watched or downloaded to another device via a tethered connection.
A separate claim in the email from T-Mobile is more of the "tap dancing around the truth" variety. And it's the claim that T-Mobile made it clear from the beginning that it would be doing this to non-partner videos as well. Here's what the T-Mobile rep said in the email to me:
This is how Binge On has always worked. We said it from the stage, in press materials, on the web, and in customer notifications last month, and media covered it last month, as well.
This is extremely misleading. Nearly everyone I've spoken to among people who follow these issues had no idea that the "throttling" (not optimization) applied to non-partner videos. I, as a T-Mobile customer, also never received any such notice (though the PR person then forwarded me the "notification" email, so I guess technically I have now received it). Either way, I went back to look at the press release and T-Mobile's own page about Binge-On to see about how clearly the company really revealed that it would also be throttling non-partner video. And the company was not at all clear about it.
In the press release (not surprisingly), T-Mobile focuses on all the Binge On partners. To realize that it's also throttling other videos you have to carefully parse some confusing text buried in the 8th paragraph of the press release, which most people won't even recognize. Here are paragraphs four through eight -- with the relevant mention bolded (without that, you might miss it):
With Binge On, video now streams free for viewers and subscribers of Crackle, Encore, ESPN, Fox Sports, Fox Sports Go, HBO Now, HBO Go, Hulu, MLB, Movieplex, NBC Sports, Netflix, Sling TV, Sling Box, SHOWTIME, STARZ, T-Mobile TV, Univision Deportes, Ustream, Vessel, Vevo, VUDU—with more streaming services on the way—without ever touching their 4G LTE data on Simple Choice plans with extra data. T-Mobile is also including Verizon’s Go90 and AT&T’s DirecTV streaming services in Binge On, so even the Duopoly’s video services stream without fear of overages.
Binge On is open to any streaming video provider who meets the technical requirements, which are available online at www.t-mobile.com/bingeon. And it’s completely free for video streaming providers to join.
“With Binge On, no one pays—not the customers, not the video streaming services—and everyone wins,” said Legere.
Powered by new technology built in to T-Mobile’s network, Binge On optimizes video for mobile screens, minimizing data consumption while still delivering DVD or better quality (e.g. 480p or better). That means more reliable streaming for services that stream free with Binge On, and for almost all other video, it means T-Mobile Simple Choice customers can watch up to three times more video from their data plan. And, as always, T-Mobile has put customers in total control with a switch to activate or deactivate Binge On for each line in their My T-Mobile account. Binge On is all about customer choice.
So basically all of the press release is talking about how Binge On is about "free" video from partners, and then in the second half of a sentence, buried in the middle of a paragraph (eight paragraphs into the press release) is a tidbit about how "for all other videos" the bandwidth is downgraded (what T-Mobile falsely calls "optimized"). That is the farthest thing from being clear about what is happening.
Similarly, on the website for Binge On itself, this is far from clear. Most of the page goes on and on and on about how "you can stream all you want for FREE without using your data." The clear implication is that video streaming doesn't count against a datacap. Lower down it has the following:
What basically no one is going to realize is that the "Watch 3X more video" claim on the right is talking about non-partner video. They don't actually say that. In fact, given how so much of the focus is on how the video doesn't count against the data cap at all, the whole "3x more video" bit is actually kind of confusing, because they're both saying you can watch "as much video as you want" on the left, and then on the right, saying you can now watch 3x as much video. They are not being clear at all about this.
It's only if you go all the way to the bottom of the page and click to expand the first "question" about Binge On that it finally explains what this means:
I mean, it's really, really buried. Here's a screenshot of the whole page, showing you where this information is buried (and, remember, this is showing it to you after I've clicked the little "+" button to show more). Most people will miss it entirely:
So, yeah: T-Mobile is flat out lying in claiming that it "optimizes" YouTube, and it's being ridiculously misleading in arguing that it was abundantly clear about how Binge On would impact non-partner videos.
Now, the big question: will the FCC actually do anything about this?
It hasn't been a particularly good year for ESPN, once considered evidence of cable's infallibility in the face of Internet video. The sports network spooked Wall Street several times this year; once when analysts realized ESPN's viewership totals had dropped 7.2% since 2011, and again when SEC filings showed the cable network had lost 7 million subscribers in the last two years alone. That's of course thanks to two major trends: cord cutting (and cord trimming) users tired of the high cost of TV, and the rise in so-called "skinny bundles" that ditch ESPN from the core channel lineup in a desperate attempt to retain TV customers.
"Even the Force cannot protect ESPN," BTIG Research analyst Rich Greenfield recently wrote in a note downgrading the stock to "sell." The sports channel long "viewed as the crown jewel of the Disney empire ... now appears poised to become Disney’s most troubled business as consumer behavior shifts rapidly."
45% of Disney's 2014 operating profit came from cable TV, which is caught in a desperate struggle between unsustainable programming increases and a consumer base finally fed up with bi-annual rate hikes. Case in point is basketball: in 2014 Disney signed a deal with the NBA in which it shells out $1.4 billion every year for nine years, even though ESPN's basketball viewership last season dropped 10 percent, its lowest since 2008. For years ESPN enjoyed bloated subscription rolls due to ESPN being force-included in the core cable package, and something both cord cutting and skinny bundles are threatening.
Though ESPN, like most incumbent broadcasters, has focused largely on denial instead of adaptation. Professing to be protecting "innovation," ESPN sued pay TV providers like Verizon for skinny bundles, while refusing to offer a standalone streaming service of its own for the modern era. And like most broadcast industry executives, Disney CEO Bob Iger seems to think this is just a stormy patch that ESPN can somehow ride out by charging angry customers more money:
"Iger, the Disney chief, has sought to calm investors worried about ESPN's fortunes, saying rising cable-subscription fees and increased advertiser spending would help the sports giant stay on top. Speaking on Bloomberg TV last week, Iger said, "We have lost some subscribers, but we believe we will continue to derive growth from ESPN. It will just not be at the rate it was before."
But this isn't a temporary slowdown. And, contrary to what many broadcasters believe, cord cutting isn't a fashion trend that evaporates once Millennials procreate. Cord cutting and Internet video are fundamentally changing the entire television and TV advertising landscape, something patience and a prayer isn't going to fix. At several points this year Wall Street suffered multi-billion dollar declines simply because they finally realized cord cutting was real. 2016 will be the year they finally realize the cord cutting battle station is not only fully armed and operational, but headed directly for the ESPN mothership.
For quite some time now, we've pointed out that the whole zero rating issue was a way for broadband providers to conduct a stealth war on net neutrality -- first putting in place "restrictions" that they could then "lift" for partners, pretending it was a consumer friendly move. Last month, T-Mobile introduced Binge-on, it's second such attempt at zero rating. Its first, Music Freedom, exempted some streaming music services from its data caps. Binge-On focused on video, but had a few oddities. Like Music Freedom, Binge On would make "select" video streaming platforms exempt from the data cap -- but in order to do that, it would downgrade the quality of those streams to 480p, a lower resolution than most are used to these days. It was notable that neither YouTube nor Amazon Prime were included "partners" in the launch.
But... some people started noticing some problems: specifically, even those services that have not partnered with T-Mobile started seeing their own videos downgraded. The complaints started to flow on Reddit: someone noticed that Amazon-owned Twitch.tv's videos were suddenly being throttled. Others noticed YouTube videos being throttled. In both cases, those users were able to "fix" the problem by going into their account and turning off Binge On, but it still seemed troubling that T-Mobile had decided to automatically turn on Binge On for users, downgrading streaming video, even for video providers who had not agreed to such provisions.
Degrading video quality this way violates the FCC’s no-throttling part of the net neutrality rule, which forbids reducing the quality of an application or an entire class of applications. Even though T-Mobile and its brilliant CEO, John Legere, have done much to shake up the mobile industry in positive ways (they even won me over as a subscriber), this is one practice that the company should, and probably must, abandon.
As a purely legal matter, T-Mobile cannot easily defend its actions by arguing that this discrimination is good for its users. The FCC has already rejected that argument in advance by adopting a “bright-line” rule for all technical forms of discrimination absent some special technical justification. After hearing from millions of Americans throughout 2014, the FCC decided earlier this year that “the record overwhelmingly supports adopting rules and demonstrates that three specific practices invariably harm the open Internet,” and named one of them throttling.
YouTube, which is owned by Alphabet Inc., said T-Mobile is effectively throttling, or degrading, its traffic. “Reducing data charges can be good for users, but it doesn’t justify throttling all video services, especially without explicit user consent,” a YouTube spokesman said.
T-Mobile -- which has never been a fan of the new net neutrality rules, seems to think that because the service is "optional" that makes it okay. But that ignores two key things: (1) the FCC's rules say no throttling and (2) even if it is optional, T-Mobile turned it on for everyone, without telling users, and has not made it at all clear to users what's happening. That is, in every complaint you see online, you'll notice that people have no idea that this service has been turned on.
That makes it hard to square with the idea that this is for the benefit of T-Mobile subscribers. T-Mobile's only statement on this issue so far is also totally disingenuous:
In a statement, the No. 3 U.S. carrier by subscribers said its customers “love having free streaming video that never hits their data bucket” and like “both the quality of their video experience and the complete control they have.”
Again, this is T-Mobile exempting certain services from the data caps it set up itself. If customers love having streaming video that doesn't hit their data caps, then there are all sorts of ways to do that, which don't involve messing up the user experience overall, and without surreptitiously turning this system on in a way that messes up the plans of users.
Over the last few months, we've seen basically all of the major telcos look for ways to test the boundaries of the new net neutrality rules. At some point the FCC is going to have to smack them down or the tests are going to get more anti-consumer and more blatant. And, again, don't be fooled into thinking this is a "pro" consumer move in that it exempts data from the cap. That's like someone tackling you and then demanding to be called a nice guy for giving you a hand to get back up. The data caps are set by T-Mobile itself. The argument pretending that an exemption is somehow consumer friendly should immediately be spun around to point out that the caps themselves are then clearly anti-consumer.
Either way, one hopes that the FCC is actually paying attention, otherwise the telcos are going to keep moving to walk all over the new rules, with plans like this one, figuring out where and how they can throttle or prioritize traffic based on the providers' own needs, rather than based on what the internet allows.
from the this-post-brought-to-you-by-Facebook dept
For much of the year Facebook has been under fire for trying to dress up its attempt to corner developing nation ad markets under the banner of selfless altruism. Facebook's plan is relatively simple: through a program dubbed Free Basics, Facebook plans to offer developing markets a Zuckerburg-curated, walled garden version of the Internet, for free. Under Facebook's vision of this program, Facebook becomes the axle around which online access (and therefore online advertising) spins for generations to come, with the tangential bonus of helping low-income communities get a taste of what online connectivity can offer.
But many critics have complained that such a model gives Facebook too much control. Partner companies quickly dropped out of the program, unhappy that Facebook got to decide which content was "zero rated" (exempted from wireless usage caps) and which wasn't. Companies like Mozilla similarly argued that if Facebook was so keen on helping the poor, it should finance access to the actual internet. Others worried that having one company as a powerful gatekeeper not only poses problems for competition, innovation and speech, but helps create a central repository for subscriber data that would prove an irresistible target for hackers, governments, and oppressive regimes.
Facebook's response to all of this criticism was to call these concerns extremist, and to imply that if you're questioning Facebook's motives, you're hurting the poor.
The problem (for Facebook) is that as India spent much of the year trying to craft net neutrality rules, government regulators agreed with this criticism, suggesting that what Facebook was attempting was glorified collusion. This week, in a desperate attempt to sway the government toward Facebook's AOL-esque vision, the company decided it would be a good idea to use Facebook users to automatically spam the Indian government. Users who logged in were greeted with a message that automatically sent a message to Indian regulators lamenting a "small group of vocal critics" trying to derail free Internet access:
Of course that "small, vocal group of critics" is in reality quite large. And they're not looking to ban free Internet access from a billion people, they're just smart enough to realize that what developing nations need is real infrastructure connecting people to the actual Internet at lower prices, not a bastardized version of AOL. Facebook has consistently tried to argue that if you oppose its vision of a curated walled garden you're a villain preventing the poor from being connected. But that's nonsense, and it doesn't void the reality that Free Basics is a potentially harmful idea, dressed up to look like Mister Rogers.
Curiously, several Indian Facebook users who've received this message claim that by simply scrolling down the notice, Facebook sends your message to the government without your tacit approval:
Facebook also claims it "accidentally" spammed many users in the United States and the UK with the message, likely resulting in a few extra million "accidental" messages to Indian regulator Trai, which is busy fielding input from the public. You almost get the sense that Facebook's getting a bit desperate when it comes to pitching its plan for global ad market domination unprecedented international love and caring.
The FCC's unwillingness to clearly ban zero rating as part of the net neutrality rules is starting to bite the agency -- and consumers -- squarely on the ass. Zero rating -- or the practice of letting some content bypass an ISPs' usage caps -- is seen by many to be a major anti-competitive problem, given the act of giving some companies cap exempt status puts everybody else at a disadvantage. That's why Chile, Norway, Netherlands, Finland, Iceland, Estonia, Latvia, Lithuania, Malta and Japan have banned the practice.
But the FCC, in its infinite wisdom, decided that instead of banning zero rating, it would take a wait and see approach, addressing zero rating behavior on a case by case basis. And you can understand the logic; the FCC believes it's best to let ISPs experiment with what they insist are just creative new pricing models. The problem is one of precedent. Allow any form of zero rating, and you've already opened the door to the role of ISP as warden and gatekeeper. The other problem? The FCC's wait and see approach has so far involved doing absolutely nothing, even in the face of obvious anti-competitive behavior.
As a result, T-Mobile's now exempting both select video and audio streaming services from caps as part of its Music Freedom and Binge On programs. AT&T and Verizon's "Sponsored Data" programs charge companies a fee to have their content receive preferred, cap exempt status, putting any smaller companies that can't afford the fee at a disadvantage. Comcast has been slowly expanding its usage caps, then exempting its own content from them, giving it an unfair advantage against Netflix.
Though they vary in severity, all four of these companies are using their power as middlemen to potentially give some companies an advantage over others, the very thing our net neutrality rules were supposed to put an end to. Comcast's behavior is probably the most unapologetically anti-competitive of the bunch. Yet the FCC's response to most of these so far has ranged from total silence to outright praise.
Well, at least until last week, when the agency finally fired off letters to Comcast, AT&T and T-Mobile (pdf), asking them for more detail on zero rating plans that have been fully detailed for months (in AT&T's case, a few years). At an agency meeting last week FCC boss Tom Wheeler made it clear this was simply an inquiry, not an investigation, and the letter informs the companies the FCC's just looking to better understand what ISPs are doing (the agency was, apparently, in cryogenic storage all year):
"We want to ensure that we have all the facts to understand how this service relates to the Commission's goal of maintaining a free and open Internet while incentivizing innovation and investment from all sources. We would also like to hear from you any additional perspectives you'd like to share about changes in the Internet ecosystem as a whole. To assist us in this review, we request that Comcast make available relevant technical and business personnel for discussions about the service with FCC staff, no later than January 15, 2016."
While the FCC moves at a glacial pace, Comcast has spent much of the year using broadband usage caps and zero rating for unfair market advantage. Again, Comcast is imposing unnecessary broadband caps in uncompetitive markets to hinder Internet video, then exempting its own streaming service from usage caps to penalize competitors like Netflix. So far, Comcast has argued this couldn't possibly be a net neutrality violation because the service spends significantly more time traveling over Comcast's managed IP infrastructure instead of the public Internet. It's a tap dance, and the FCC's response is timid and underwhelming.
If the FCC had clearly prohibited zero rating, it wouldn't have opened the door to Comcast's latest logical lambada. As we worried when the rules were crafted, leaving zero rating enforcement ambiguous opens the door to all manner of net neutrality violations -- just as long as an ISP is wearing the right tap dancing shoes.
For years, government officials have pleaded to the technology industry for help yet have been met with disdain. In fact, one of the world’s most powerful tech companies recently refused a lawful access request in an investigation of a known drug dealer because doing so would “substantially tarnish the brand” of the company. We are indeed in a dark place when companies put their reputations above the greater good. At BlackBerry, we understand, arguably more than any other large tech company, the importance of our privacy commitment to product success and brand value: privacy and security form the crux of everything we do. However, our privacy commitment does not extend to criminals.
Chen notably does not use Apple's name, lest it encourage potential customers to seek out a company that gives a damn about its customers' privacy. Chen claims he won't allow criminals to remain hidden from law enforcement if they're using his company's phones and services. All well and good, but that assumes the only time law enforcement will seek access to encrypted communications and data is when they've obtained a conviction, which is rarely the case.
Sometimes, these agencies are relying on a minimal showing of reasonable suspicion to obtain data/communications with subpoenas and national security letters. Other times, they're working with probable cause and actually obtaining warrants (warrants which also give them permission to seize electronics, thus ending their alleged use in criminal activity). Either way, the question of guilt is still up in the air. What Chen likely means is he won't extend his privacy commitment to people who are suspected of criminal activity, but that doesn't sound nearly as audacious and idealistic as declaring "criminals" will have no place while Chen's in charge.
When your company has been engaged in a multi-year marketshare freefall, it's pretty easy to take shots at companies who worry about possibly "tarnished reputations." Outside of the government itself, Blackberry is nobody's idea of an innovator or a viable threat. When Chen says he's on the side of the government, it's no surprise, as the government has been on his company's side for several years now.
From this self-interested take on the encryption debate, Chen moves on to making questionable assertions about the public's obligation to assist law enforcement.
We reject the notion that tech companies should refuse reasonable, lawful access requests. Just as individual citizens bear responsibility to help thwart crime when they can safely do so, so do corporations have a responsibility to do what they can, within legal and ethical boundaries, to help law enforcement in its mission to protect us.
Just to be clear, citizens are not obligated to "thwart crime." Neither is law enforcement, for that matter. Both can make reasonable efforts to deter criminal activity, but nobody's charged with "thwarting crime." This is why law enforcement agencies must use warrants and other legal paperwork to demand this information. The receiving party's obligation doesn't begin until the paperwork is in hand. Chen almost suggests private companies should be going above and beyond what is required by these court orders.
The key issue in the case Chen doesn't refer to by name is a 1789 law that the feds are using to avoid dealing with the Fifth Amendment. They want Apple to unlock a phone so they can access the contents, rather than spending any more time asking the detained suspect to do this. Apple has refused. It has also noted that, even if it does comply with this order, it will be unable to do so with its newer iPhones.
Chen thinks Apple should just comply with the order "for the greater good," apparently never considering the fact that forcing the government to actually operate within the confines of existing statutes would perhaps result in a form of "greater good" itself.
He then goes on to state his support for encryption and opposition to encryption bans or backdoors. This seems highly unlikely considering his earlier statements about granting the government access to phone contents. He notes he has pulled his products from countries that have demanded backdoors (but not all of them), but doesn't appear to be able to reconcile Blackberry's actions with his criticism of Apple's. Instead, he makes this unsupported statement:
Make no mistake: service providers bear a dual responsibility to protect customer privacy zealously and to cooperate with lawful requests for investigative assistance.
Very idealistic, but whether or not Apple wins this particular battle (and loses more of Chen's respect, whatever that's worth), it will make no difference in the future. Blackberry offers encryption, but Chen's post contains no details about his company's ability to decrypt to comply with law enforcement orders. Blackberry's early implementation of encrypted communications actually led to a former NSA official claiming this was the reason for its downfall. So, unless Blackberry is creating escrow keys, it will be no more cooperative than Apple when the government comes asking for access to communications.
from the this-outrage-was-brought-to-you-by-AT&T dept
While it was overshadowed by the net neutrality debate, the FCC's decision last February to attack state protectionist broadband laws was notably more important. For fifteen years, companies like AT&T, Comcast and Time Warner Cable have used groups like ALEC to pass laws in more than 20 states hindering or outright preventing towns and cities from building their own broadband networks -- even in cases of pure market failure where incumbent ISPs refused to. In some states, towns are even prohibited from striking public/private broadband partnerships.
In the FCC's February 3-2 decision, the FCC took specific aim at two such laws in Tennessee and North Carolina, after municipal broadband providers there stated they were unable to expand due to these laws. By the FCC's logic, the laws (which by any definition are pure protectionism) run afoul of the agency's authority under Section 706 of the Telecom Act to ensure even and timely deployment of broadband access. Since again, these laws protect nothing but the pocketbooks of giant, lazy telecom incumbents, it was a good and overdue call, and largely overlooked by the press.
Of course standing up to lobbying powerhouses like AT&T comes with a price, and ever since the FCC's vote it has been attacked by ISP-funded allies in Congress like Marsha Blackburn, who breathlessly assailed the FCC's decision as an assault on states' rights. You'll notice that nowhere is concern expressed by folks like Blackburn about how states were quite literally letting the highest bidder write the god-damned law.
Fast forward to this week, when Presidential hopeful Marco Rubio and seven other state freedom lovin' Congressmen wrote a letter to the FCC (pdf) scolding the agency for daring stand up to AT&T. In the letter, Rubio and friends accuse the FCC of "choosing winners and losers" in the broadband race:
"...The FCC is promoting government-owned networks at the possible expense of private sector broadband providers -- both incumbents and competitors -- who have made strides to deploy networks throughout the country. Municipal broadband networks not only run the risk of overbuilding existing private networks, they could also result in the loss of limited universal service funds for carriers who are delivering broadband to rural Americans. The FCC should not be in the business of choosing winners and losers in the competitive broadband marketplace."
Of course that's nonsense. The only one picking winners and losers here are ISP lobbyists, who are preventing towns and cities from making local infrastructure decisions for themselves. And it's worth repeating that these towns and cities wouldn't be considering building their own networks (or begging private partners like Google or Tucows to do it) if they were happy with the broadband service they receive from the nations pampered incumbents. While there's pockets of competition, by and large US broadband is a story of regulatory capture and market failure, and community broadband is a very healthy, organic response to that.
"Rubio’s presidential campaign has relied heavily on AT&T lobbyist Scott Weaver, the public policy co-chair of Wiley Rein, a law firm that also is helping to litigate against the FCC’s effort to help municipal broadband. As one of Rubio’s three lobbyist-bundlers, Weaver raised $33,324 for Rubio’s presidential campaign, according to disclosures.
Rubio’s campaign fundraising apparatus is also managed in part by Cesar Conda, a lobbyist who previously served as Rubio’s chief of staff. Registration documents show that Conda now represents AT&T."
Funny, that. In other words, Rubio took time out from campaign fund raising to defend AT&T's right to write horrible state broadband law that not only makes U.S. broadband worse -- but strips local communities of their rights. Being able to decide for yourself what your community should and shouldn't be able to do is a very non-partisan idea. Unfortunately, like net neutrality, municipal broadband has been quite intentionally polluted by partisan bickering in an attempt to stall progress for the sole benefit of a few, deep-pocketed companies. Companies that wouldn't be facing a grass-roots broadband revolution if they were motivated and willing to offer faster, better broadband service in the first place.
For many years now we've discussed the unflagging belief on some fronts that WiFi is capable of making people sick, despite no scientific evidence supporting this belief. Getting some shouldn't be hard, yet the "electromagnetically sensitive" have yet to prove they're capable of even detecting the presence of WiFi signals during double blind studies. That hasn't stopped many of them from flinging lawsuits about, suing schools for making their kids sick, or even forcing school districts to eliminate WiFi entirely.
Every time I write something highlighting the absurdity of this behavior I'm accosted by individuals wielding "proof" of WiFi's disastrous impact on the human body in the form of lengthy pdf lists of new age websites and aggressively-unscientific "studies." It's enough to, like, totally pollute my aura.
And once again, WiFi allergies have stumbled into the headlines, with one UK mom's claim that a WiFi allergy drove her 15-year-old daughter to suicide. The girl was found dead in a wooded area near the family's home after sending a text message to her friend warning her of the suicide. The tragedy has been compounded by the mother's decision to blame the WiFi at her daughter's school for the death of the child:
"As soon as Jenny walked away from a router she felt instantly better so she was almost hunting out areas of the school which weren't covered by WiFi just to do her work. "I remember saying to the school 'if someone had a peanut allergy you wouldn't make them work surrounded by peanuts'. "Just because WiFi is new and all around us doesn't mean it is safe. WiFi and children do not mix. Much more research needs to be done into this because I believe that WiFi killed my daughter."
Unsurprisingly the coroner couldn't find medical evidence of any such sickness. And overall scientific evidence still doesn't support the narrative of WiFi illness. As the World Health Organization has noted, nobody claiming to suffer from such a disorder has been able to show they can actually detect radio frequency fields, which, given the seemingly common nature of the complaint, would have happened at this point. None of this is to pretend that the medical profession is infallible (as controversy surrounding prolonged Lyme disease symptoms clearly illustrates), but the science supporting WiFi-caused illness just isn't there.
More often than not the "tiredness, headaches and bladder problems" have other causes, ranging from a miserable diet and lack of exercise to mold or other more subtle disorders and diseases. Making entire school systems less productive because your gut believes WiFi poses a fatal threat remains categorically absurd, no matter how unfortunate the tragedy or understandable the grief.