T-Mobile chief executive John Legere is going to great lengths to defend his company’s Binge On program, which it recently introduced as a way for customers to stream video without the data use counting against their monthly data allowance. As Legere wrote in a letter to T-Mobile customers, T-Mobile has had a tumultuous week, and that began when the Electronic Frontier Foundation, a nonprofit that champions digital-age rights like privacy and net neutrality, wrote that “T-Mobile’s Binge On optimization is just throttling.”
EFF’s Jeremy Gillula reported that Binge On sounds harmless at first. Any video provider can participate for free, and the service simply recognizes video streams and “optimizes” them to a bitrate equivalent to 480p, which most users would consider adequate. But things got problematic when the EFF discovered that T-Mobile applies this “optimization” to all videos, not just those from providers that have signed up to have their streams zero-rated, and both videos that you’re streaming and those that you’re downloading.
Gillula reports that T-Mobile throttles all videos to around 1.5Mbps, whether or not the video provider is enrolled in Binge On. That corroborates YouTube’s charges that T-Mobile is “interfering” with its video streams. In EFF’s test, if a video was more than 480p, and the server sending it didn’t have a way to reduce or adapt the bitrate, the video would stutter or stream unevenly — the opposite of what you’d expect of T-Mobile’s euphemistic “optimization.”
T-Mobile confirmed to the EFF that it doesn’t actually perform any optimization of video streams other than reducing the bandwidth that’s allocated to them. And EFF’s tests reveal that all video streams are capped at about 1.5Mbps, even when the LTE connection and the rest of T-Mobile’s network can support higher throughput — which makes it clear that this is happening independent of any network congestion.
The problem is that T-Mobile claims that the practice isn’t actually throttling — when by any logical definition, it really is. Gillula argues that even setting aside the question of whether zero-rating violates net neutrality principles, it’s pretty clear that throttling traffic based on application type is a net neutrality violation.
He thinks that T-Mobile should make Binge On opt-in, instead of opt-out, with clear disclosure that opting in will throttle all video traffic. Or, if the carrier really wants to be neutral, then it shouldn’t require video providers to enroll in Binge On to get their videos zero-rated. And as Gillula notes, the entire argument hinges on the assumption that data caps are necessary to mobile networks — an issue that’s separate from the question of whether zero-rating can really be a neutral practice.
T-Mobile has, so far, been unwilling to learn from the criticism. As Dawn Chmielewski reports for Re/Code, Legere called YouTube’s interference claims “bullshit,” and responded to EFF’s findings, and a question the group directed to him on Twitter, with attacks and misdirection. “Who the fuck are you anyway EFF? Why are you stirring up so much trouble,” Legere said in a video distributed on Twitter. “And, who pays you?”
Instead of acknowledging that T-Mobile slows down video streams, as company representatives have done, Legere repeated his refrain that the carrier uses proprietary technology. “What throttling is is slowing down data and removing customer control,” Legere said. “Let me be clear. Binge On is neither of those things. When you stream video from a participating site with Binge On, it never subtracts any data from your plan.” But as YouTube said in its statement about T-Mobile’s interference with its video streams, “Reducing data charges can be good for users, but it doesn’t justify throttling all video services, especially without explicit user consent.”
T-Mobile keeps bending the truth on Binge On and its net neutrality implications, with Legere’s letter to customers insisting that “T-Mobile is a company that absolutely supports Net Neutrality and we believe in an open and free Internet.” The program violates the FCC’s Open Internet Order (PDF), which lays out universal net neutrality rules and says that ISPs shouldn’t “degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.” The document adds, “With the no-throttling rule, we ban conduct that is not outright blocking, but inhibits the delivery of particular content, applications, or services, or particular classes of content, applications, or services.”
Legere would be wise to note that the FCC’s estimation of throttling doesn’t seem to change when a carrier throttles traffic in order to provide something to consumers for free, and it doesn’t seem to condone throttling when the carrier enables you to turn the feature on or off by visiting your account settings. While it might sound commendable that Legere wants to “fix an arrogant and broken industry that is dominated by big companies that want to keep the status quo,” replacing the status quo with programs that violate net neutrality principles, all to offer a dubious benefit to consumers, isn’t a good way forward. And being dishonest about what you’re doing just makes it worse.