T-Mobile’s Binge On: When throttling may not break the rules

We consulted advocacy groups Public Knowledge—which supported the Federal Communications Commission’s Open Internet Order—and TechFreedom, which opposed it. While the two groups have different views on network neutrality, they each have lawyers who believe the case against T-Mobile is far from clear-cut.

Public Knowledge Senior VP Harold Feld said he doesn’t have a solid opinion on whether T-Mobile is violating the no-throttling rule. “What T-Mobile is really arguing is: (a) they inform subscribers that this will happen to all video if they don't opt out of Binge On; and (b) this should not count as ‘throttling’ under the rules because it is user-controlled and has positive benefits to the user of extending the amount of video a user can get under the cap. Hence T-Mobile's use of the word ‘optimizing.’ It's like the Internet meme, ‘see I fixed it for you.’ This makes for a very complicated case and not a simple slam dunk.”

Berin Szoka, who practiced Internet and communications law and is now president and founder of TechFreedom, said, “It’s not entirely clear whether the no-throttling rule bars throttling programs where users can opt-out (or where they have to opt-in).” The FCC’s Open Internet Order says the no-throttling rule “does not address a practice of slowing down an end user’s connection to the Internet based on a choice made by the end user.” T-Mobile could also argue that reducing data usage of video is reasonable network management because extensive video usage can cause congestion, and Binge On is "a way of better managing the huge crunch of video on its network," Szoka said.