Net Neutrality Advocates Are Worried About T-Mobile’s BingeOn Deal

There’s nothing on the books to prevent T-Mobile from not charging for some wireless data, but open internet advocates believe this may set a dangerous precedent.

|
Nov 11 2015, 8:31pm

T-Mobile CEO John Legere. Image: T-Mobile

A new T-Mobile initiative called "BingeOn" gives the wireless carrier's customers the ability to watch streaming video services like Netflix and Hulu without eating into their monthly data caps. On the surface, it sounds like a great deal for consumers, but some net neutrality advocates believe it may endanger the very idea of a free and open internet.

After all, what incentive is there for consumers to try out new services if they can get HBO Now for free? And if that's the case, who's to say that the next Netflix will ever get off the ground?

"Anytime your ISP is a gatekeeper of any kind you should be worried," EFF Legal Director Corynne McSherry told Motherboard. "We don't need to ascribe any ill intentions or sinister goals to T-Mobile to see how [BingeOn] could be a problem."

BingeOn is an example of what's known as zero-rating, the practice of ISPs not charging their customers for certain data that they consume. According to T-Mobile, companies interested in participating in BingeOn merely need to contact it, work out some technical details related to data delivery, and they're good to go. Crucially, T-Mobile is not charging for the right to be included in BingeOn, with CEO John Legere saying in a blog post that his company "is not here to play favorites."

"The only difference is on our customers' bills," Legere said.

But whether or not money changes hands may miss the point.

"Contrary to what people will tell you, this has nothing to do with whether or not payment is being exchanged," Access Advocacy Director Joshua Levy told Motherboard. "It's about whether some content is being prioritized above other content."

In Levy and McSherry's view, the mere fact that companies must approach T-Mobile to be included in BingeOn is a blemish on the idea of a free and open internet. Why would consumers seek out novel alternatives or try out a new streaming video startup when they can merely watch Seinfeld on Hulu or Lost on Netflix without worrying about it impacting their data?

"These kinds of plans solidify the status of incumbents," said Levy. "The internet should be all about disrupting the status of incumbents, continually introducing innovation and expression."

"Once T-Mobile has customers comfortable with [zero-rating] they may exercise even more power over consumers," said McSherry. "Today's program may not be tomorrow's program," she warned.

The Federal Communications Commission does not forbid zero-rating deals like BingeOn. In the net neutrality rules [PDF] that went into force earlier this year, the FCC does concede that it's "mindful" of the "concerns" raised by open internet advocates who suggest that zero-rating may "distort competition," but the regulator admits that there may be cases where zero-rating "could benefit consumers and competition."

The FCC notes, however, that it will "take action as necessary" when alerted to initiatives that may be considered harmful to consumers.

"Net neutrality is a law and not an idea," Dan Rayburn, a principal analyst at Frost & Sullivan and EVP of StreamingMediablog.com, told Motherboard. "You may not like that [the FCC doesn't ban zero-rating], but T-Mobile is following the letter of the law."

"Consumers can now consume more content away from their home than they could before. What's the downside?" he asked.

This isn't T-Mobile's first experiment with zero-rating. In 2014, the company launched a similar initiative called Music Freedom in which data from select streaming music providers, including Pandora and Spotify, would not count against customers' data caps. Similar net neutrality concerns were raised then too, well before the current net neutrality regulations were put into place.

Walter Piecyk, managing director of technology, media, and telecom at BTIG Research, explained to Motherboard the shock of seeing his phone bill after his daughter "burned through" 18 gigabytes of streaming video on her phone. "Holy fuck," he says he exclaimed.

"T-Mobile," he said, "is offering customers the opportunity" to avoid moments like that. "If people have an issue with zero-rating, instead of writing 500-word blog posts they should file a complaint with the FCC."