Is T-Mobile's Binge On Illegal? Stanford University Law Professor Says Yes


A 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. 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 is in violation of the FCC's Open Internet Order of 2015.

The first argument claims that the system distorts competition. Schewick explains that providers selected to participate in the Binge On program have a competitive advantage because consumers are more likely to choose content from those providers as opposed to others that will cause to have their data subtracted from the total amount allocated to their plan.

In addition, video creators are more apt to use the Binge On approved platforms for their content because they realize consumers are more likely to use those platforms, creating additional competition distortion.

Schewick goes on to argue that user choice is limited by Binge On and that T-Mobile users on the carrier's lowest qualifying plan can watch unlimited amounts of video from approved platforms but only an average of nine minutes of video per day from non-participating platforms.

She also claims that free expression is stifled as a result of the Binge On plan. Because the 42 currently approved providers are almost all offering 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.

Schewick further argues [pdf] that the system harms innovation by favoring large, more popular video streaming services over smaller content providers. She cites that many smaller content providers had to wait a year and a half to be included in the service and some have not even heard from the carrier since they have applied.

"[T-Mobile] discriminates against providers that use encryption, a practice that is becoming the industry standard. While some providers can join easily, a significant number will need to work with T-Mobile to determine whether their service can be part of Binge On. Many will have to invest time and resources to adapt their service to T-Mobile's systems. The smaller the provider, the longer it will likely take for T-Mobile to get to it," she adds.

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.

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