Binge On is illegal says law professor

Written by on February 2, 2016 in Guest Blog with 0 Comments

Binge OnA Stanford University law professor has argued that T-Mobile’s Binge On service, which allows users to stream content from a list of approved providers without eating into their monthly data allocation, is illegal because it violates net neutrality. The professor argues that the system set up by T-Mobile favors some content providers over others, violating rules of fair competition.

Professor Barbara van Schewick, a “net neutrality expert”, has filed a 51-page document with the FCC outlining various arguments as to why Binge On service violates net neutrality on impinges on the FCC’s Open Internet Order of 2015.

So what is the professor claiming?

  1. Binge On distorts competition because content providers on Binge On have a competitive advantage since consumers will choose their content because theirs is free to watch.
  2. In the future, content creators will use the Binge On platforms for their content because consumers are using this platform. Again, distorting competition. (See the parallel Netflix “open connect” platform)
  3. User choice is limited because the Binge On platform video is unlimited and video not on the platform is limited to only 9 min per day.
  4. Free expression is stifled because on Binge On the 42 currently approved providers offer commercial entertainment and ‘not user generated, educational or nonprofit video.’ “It turns the mobile Internet offered by T-Mobile into an optimal platform for commercial entertainment at the expense of all other speakers. This undermines the potential of the Internet as a democratic space for free expression,” she says.
  5. The system harms innovation… it favors large popular video streaming services and not the smaller ones. Small OTTs need to wait a long time to get approved.
  6. Binge On discriminates against providers that use encryption, an industry standard (mostly dominated by the “small” YouTube…)
  7. Binge on favors video streaming over other internet uses…

My favorite is it that Binge On favors video streaming over other Internet uses. Really!?!?  What would the Professor have to say about Netflix’s Open Connect? Maybe Caching and CDNs should be outlawed? Netflix’s Open Connect* clearly violates net neutrality, according to most of Professor van Schewick’s claims. It definitely discriminates video traffic only, and it is only Netflix to boot. Some traffic – by definition – is cacheable while other traffic is not. Does that mean it too violates net neutrality for being discriminatory?

When it comes to looking for what violates net neutrality, Law Professors just can’t get enough, but do they really understand how the Internet works? I really like the Professor’s marketing suggestions to “fix/upgrade” the Binge On plan so it will meet with Net Neutrality she is advocating for.

T-Mobile and other industry observers continue to argue that Binge On does not violate net neutrality because it is a free offering, which customers are able to disable if they desire. It will be interesting to see if the FCC agrees with them or with Schewick, who, in either case, has irritated a lot of T-Mobile customers currently enjoying the Binge On service.

*Netflix “Open Connect

The Netflix Open Connect provides high-quality viewing experience through efforts with Internet Service Providers (ISPs) to deliver content in the most efficient manner. They partner with hundreds of ISPs to localize substantial amounts of traffic with Open Connect Appliance deployments and have an open peering policy.

Netflix share hardware design and open source software components of their Open Connect Appliances. These designs can be helpful for other providers of large media files.

More here, here and here.

This article was first published here, and is reproduced with kind permission.

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About the Author

About the Author: Jonathon has been lurking around the Telecoms and Internet space for the last 20 years. He is now a man on a mission – that being the reformation of the Industry Analyst business. He is working with his co-conspirators on transforming the Industry Analyst world forever as an Expert with EMI. .

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