Law professor: T-Mobile’s Binge On program violates Net neutrality

A T-Mobile service called Binge On that allows subscribers to consume as much data as they want while streaming video from selected providers violates Net neutrality rules, according to a published analysis from Stanford University legal scholar Barbara van Schewick.

Net neutrality’s core tenet is that service providers shouldn’t be allowed to discriminate between different types of traffic they’re asked to carry. By offering some video services – including Netflix, Hulu and HBO – and not others as “free” streaming options, and not counting mobile data consumed from those services toward a user’s monthly cap, T-Mobile is essentially favoring some kinds of video content over others, van Schewick wrote.

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“Binge On allows some providers to join easily and creates lasting barriers for others, especially small players, non-commercial providers, and start-ups,” according to van Schewick. “As such, the program harms competition, user choice, free expression, and innovation.”

Stiff Net neutrality regulations on ISPs were upheld last year by the FCC, but carriers have vowed to challenge their validity in court.

The report from van Schewick, which can be read in full here, cites numerous problems with Binge On. The program excludes services that use the user datagram protocol (UDP), which includes YouTube. It also puts start-ups in the awkward position of having to choose between using UDP, which can have technological advantages, or being eligible for inclusion in Binge On.

T-Mobile has yet to reply to a request for comment.

Binge On is the latest instance of “zero-rating,” the practice of offering unlimited access to provider-selected content, to come under fire from Net neutrality and open Internet proponents. Perhaps most controversial has been Facebook Zero, an attempt by the social network to offer subsidized Facebook access to subscribers in developing countries, where a large proportion of users are restricted to mobile ISPs. Critics charge that this is more of an attempt to make inroads into new online ad markets than it is a high-minded effort to offer broader Internet access to underserved areas.