Why Net-Neutrality Activists Hate T-Mobile’s Free Video Plan

T-Mobile will let customers watch Netflix without burning through their data plans, but does that violate net neutrality?

T-Mobile CEO John Legere speaks at Un-carrier X press conference at the Shrine Auditorium on Tuesday, Nov. 10, 2015, in Los Angeles.
Photo by Jordan Strauss/AP Images for T-Mobile
Brendan Sasso
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Brendan Sasso
Nov. 10, 2015, 8:11 p.m.

T-Mo­bile CEO John Legere bragged Tues­day that he’s giv­ing con­sumers “ex­actly what they want” by let­ting them watch pop­u­lar video ser­vices like Net­flix and HBO on their mo­bile devices without count­ing it against their monthly data pack­ages.

But con­sumer ad­voc­ates pounced on the new “Binge On” pro­gram, warn­ing that it could tilt the In­ter­net in fa­vor of the biggest com­pan­ies, vi­ol­at­ing the prin­ciple of net neut­ral­ity.

“As it stands, it looks like a net-neut­ral­ity vi­ol­a­tion right now,” said Bar­bara van Schewick, a pro­fess­or at Stan­ford Law School and a lead­ing net-neut­ral­ity sup­port­er. “The es­sence of net neut­ral­ity is that we don’t want In­ter­net ser­vice pro­viders to pick win­ners and losers.”

T-Mo­bile’s pro­gram ex­empts two dozen video sites—in­clud­ing Hulu, ES­PN, Fox Sports, and Show­time—from data caps, and the com­pany says that any oth­er video-stream­ing ser­vices that meet cer­tain tech­nic­al re­quire­ments can par­ti­cip­ate. You­Tube, however, is not part of the ini­tial pro­gram. The sites will stream at a slightly lower qual­ity than nor­mal.

“With Binge On, no one pays—not the cus­tom­ers, not the video-stream­ing ser­vices—and every­one wins,” Legere said dur­ing an event to un­veil the new pro­gram. “We want you to stop watch­ing your data and start watch­ing your shows.” 

But van Schewick warned that the tech­nic­al re­quire­ments to par­ti­cip­ate could be oner­ous for fledgling star­tups, and small com­pan­ies in oth­er coun­tries might not even know the pro­gram ex­ists. In the long run, T-Mo­bile’s pro­gram could give ma­jor me­dia com­pan­ies a big leg up, ul­ti­mately lead­ing to less in­nov­a­tion on­line, she said. “As a cus­tom­er, you ul­ti­mately lose if there are less video-stream­ing ser­vices avail­able,” she ar­gued.

The Fed­er­al Com­mu­nic­a­tions Com­mis­sion en­acted sweep­ing net-neut­ral­ity reg­u­la­tions earli­er this year that ban In­ter­net pro­viders from block­ing web­sites, slow­ing down traffic, or cre­at­ing any spe­cial “fast lanes” for sites that pay. The com­mis­sion chose not to take a po­s­i­tion on “zero-rat­ing” policies (like T-Mo­bile’s Binge On) that ex­empt cer­tain ser­vices from data caps. But the agency left it­self room to crack down on those pro­grams un­der a broad pro­vi­sion that In­ter­net pro­viders can’t “un­reas­on­ably in­ter­fere” with the abil­ity of In­ter­net users to ac­cess the con­tent of their choice. The FCC didn’t re­spond to a re­quest to com­ment on T-Mo­bile’s an­nounce­ment Tues­day. 

T-Mo­bile, which is try­ing to find new ways to steal cus­tom­ers from Ve­r­i­zon and AT&T, already launched a sim­il­ar pro­gram called Mu­sic Free­dom last year that ex­emp­ted mu­sic-stream­ing ser­vices from its data caps. Con­sumer ad­voc­ates also ex­pressed con­cern about that pro­gram, al­though the FCC hasn’t taken any ac­tion.

John Bergmay­er, a seni­or staff at­tor­ney for the con­sumer-ad­vocacy group Pub­lic Know­ledge, warned that T-Mo­bile’s pro­grams could ul­ti­mately stifle com­pet­i­tion and leave con­sumers worse off. “I think in the long term, mov­ing the mo­bile In­ter­net to­wards a walled garden is not in any­one’s in­terest,” he said.

And Matt Wood, the policy dir­ect­or of act­iv­ist group Free Press, said cel­lu­lar pro­viders should just get rid of data caps al­to­geth­er and let con­sumers ac­cess an un­lim­ited amount of on­line con­tent of their choice. “It’s a cheap sales trick: First you fab­ric­ate a prob­lem for cus­tom­ers; then you make that prob­lem go away and act like you’ve done them a huge fa­vor,” he said in a state­ment.

Re­pub­lic­ans and busi­ness groups have warned that the FCC’s net-neut­ral­ity rules are dis­cour­aging in­vest­ment in broad­band net­works and pre­vent­ing In­ter­net pro­viders from ex­per­i­ment­ing with in­nov­at­ive busi­ness mod­els. There shouldn’t be any leg­al un­cer­tainty around a pro­gram to give con­sumers free ac­cess to videos, they ar­gue.

Legere dis­missed the net-neut­ral­ity con­cerns dur­ing Tues­day’s event. “It’s a fea­ture, and it’s com­plete cus­tom­er choice,” the T-Mo­bile chief ex­ec­ut­ive said. “We think it’s highly net-neut­ral­ity-friendly.”

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