Net Neutrality Expert: T-Mobile's Binge On Will Lead Internet Down 'A Slippery Slope'

Another shot has been fired across the bow in the battle over video streaming and net neutrality. While T-Mobile says its unlimited streaming service Binge On offers value to consumers, a leading expert says it violates net neutrality—and threatens the very future of the Internet itself.

Barbara van Schewick, a professor at Stanford Law School and the director of the Stanford Center for Internet and Society, published a white paper outlining the legal issues with Binge On and concluding that it violates net neutrality. The service first debuted in November 2015 and lets T-Mobile customers watch unlimited video streaming without it counting toward their monthly data allowance—so long as they stream from a select set of providers. Binge On now includes 42 different streaming services, including Netflix , HBO Go and Amazon Prime .

The practice of counting some content toward your data cap and not other content is known as zero rating. While not explicitly prohibited by the Federal Communications Commission ( FCC ), zero rating has drawn attention in recent years as a potential threat to net neutrality. Neither T-Mobile or the FCC responded to email requests for comment by press time.

At first glance a service like Binge On seems like a huge boon for consumers—who wouldn’t want more video streaming for no extra cost? But the problem is this type of system favors some types of content over others. It can stifle choice for consumers and harm the free speech of smaller, less established video services. “There’s this powerful idea on the Internet that you can build an application and it can reach people all over the world for a low cost,” van Schewick says. “Binge On is effectively killing this very important feature of the Internet.”

On the face of things, Binge On stays within the confines of the Open Internet Order, a set of rules governing net neutrality that the FCC established last year. The order prohibits Internet providers from blocking websites, throttling some applications but not others, or charging extra for “fast lanes.” However, the FCC can still evaluate practices that “harm Internet openness” or “cause the type of harms [the Open Internet] rules are intended to address.” So basically, they’ve got a clause saying that anything that violates the spirit but not the letter of the law can still be prohibited. Van Schewick argues that Binge On is just this type of program that goes against Internet freedom. “Taken all together, it is likely that Binge On violates the general conduct rule and is therefore illegal.”

Internet service providers just shouldn’t be in the business of regulating what people choose to consume through their service, van Schewick says, just like an electricity provider doesn’t decide what you use your electricity for in your home.

“What makes the electricity network powerful is that as long as you fit into a plug you can reach anybody with a connection. Imagine if your electric company said they were going to cap the electricity you can use for your fridge, but you can use electricity for your television as much as you want. It doesn’t matter to the network how we use the electricity. That should be our choice. In the same way, on the Internet, a bit is a bit, and the user should be able to decide how he or she wants to use it. ”

While T-Mobile has opened Binge On to any video streaming provider that wants to ask to be a part of it, the approval process favors large, established providers. To be a part of Binge On, a service has to use Transmission Control Protocol (TCP), which automatically excludes any smaller services using innovative protocols. It also excludes User Datagram Protocol (UDP), which is what YouTube uses. In essence, large commercial providers will have an easier time getting in to Binge On than young startups and innovators will. And whether or not content is zero rated can significantly affect how many people choose to access it. According to a 2014 study by the CTIA, 67% of consumers say they are more likely to choose a provider if it doesn’t count toward their monthly data allowance.

Moving forward, van Schewick hopes that the FCC will consider her white paper as it evaluates Binge On and other zero-rating services. One alternative T-Mobile could implement is offering users a low-bandwidth mode that’s zero rated and that they could use for any kind of content they want—not just video, but gaming or any other activity that requires a lot of data. But if the FCC doesn’t act, other providers like AT&T or Verizon could follow suit—and permanently change how and what we access on the Internet.