Earlier this year, the Federal Communications Commission adopted a much-celebrated net neutrality order, which is now on appeal before a federal court. That decision forbids cable and phone companies from blocking or throttling websites or charging for “fast lanes” and “slow lanes” on the Internet. But while excellent and important, the FCC order left a few questions to be decided. Could cable and phone companies discriminate against some applications by counting them against users’ monthly data caps, while exempting other apps? Could they congest connections between their networks and big Web companies and charge a toll to remove the congestion? Are there “non-Internet” services that cable companies can place in fast lanes?
The cable and phone companies have wasted no time in testing these limits. Comcast is both exempting its new Netflix competitor from data caps and prioritizing it in a special lane as a supposedly “non-Internet” service. Verizon has announced a program to charge applications for exempting them from the data caps applying to other apps. AT&T also offers this service, which it calls “sponsored data.” And T-Mobile has announced that it will exempt some video applications from users’ monthly allotment, while reducing the quality of all video on its network. All of this goes on even though cable and phone companies seem to recognize that these practices violate the public interest; recently three cable companies seeking merger approval in a public interest statement apparently think it’s not in the public interest to exempt apps from data caps or to charge for interconnection, or else they would not have offered to abstain from these practices for several years. Unless the FCC investigates and stops these practices across the Internet market, its vaunted net neutrality rule could be remembered more as useless, lovely poetry than breathing, living law.
But the FCC has at least one simple case that violates its existing rules—rather than dancing around the edges. Recently, T-Mobile announced that subscribers on plans with caps of 3 GB and more would be automatically enrolled in a product called Binge On. That service is best known for exempting some video services, such as Netflix, from users’ monthly data allotments, but not others, like YouTube, TwitchTV, or Vimeo. In response, many people suggested that this could violate net neutrality—because T-Mobile is discriminating in exempting some applications from data caps.
Whether T-Mobile’s data exemption violates net neutrality or other consumer protections for broadband users is an important question worth discussing (same for Verizon, AT&T, and Comcast—all of whose behavior in this regard seem far more nefarious than T-Mobile’s). Comcast only exempts its own apps, and Verizon and AT&T charge for the privilege, but at least T-Mobile’s program is open to competitors and without charge.
But when it introduced Binge On, T-Mobile also decided to reduce the technical quality of (or “throttle”) all video on its network for subscribers within all data plans. Specifically, while an app like YouTube may send HD-quality streams, T-Mobile is reducing the stream to DVD quality—a quality also known as “not HD.” T-Mobile throttles this video whether or not the video provider is a Binge On data partner, and it does so for every user except those who specifically opt-out online or through a call. (See this T-Mobile FAQ.)
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. (The other two are blocking sites and “paid prioritization,” often called paid fast lanes.) The FCC made it clear that throttling was “inherently … unjust and unreasonable,” so it “bann[ed] conduct that ... inhibits the delivery of ... particular classes of content, applications, or services.” Said another way, and said again by the FCC, “if a broadband provider degraded the delivery of a particular application … or class of application … it would violate the bright-line no-throttling rule.”
It also does not matter that T-Mobile provides a mobile service, not a home cable service, because the FCC applied “the same rules to both fixed and mobile broadband Internet access service.” That means T-Mobile is subject to the same blanket ban on throttling as cable companies. (The FCC order is available in several searchable formats, for those seeking context for each quote above.)
Read the full post at Slate.