Last week, YouTube complained about T-Mobile's new "Binge On" service, which exempts many of the bigger video services from user wireless user usage caps. The service, enabled by default, means video won't count against your cap, but all streaming video services get throttled back to 480p. YouTube's complaint is this: for T-Mobile users, all video services are throttled by default, even services that haven't struck any deals with T-Mobile.
"Reducing data charges can be good for users, but it doesn’t justify throttling all video services, especially without explicit user consent," complained Google/YouTube.
T-Mobile has since been making the media rounds in an attempt to deflate YouTube's concerns and head off claims that it's violating the net neutrality rules' anti-throttling provisions. The company appears to be trying to do this by claiming that what T-Mobile's doing technically isn't throttling.
"Using the term “throttle” is misleading," a representative tells me in an e-mail. "We aren’t slowing down YouTube or any other site. In fact, because video is optimized for mobile devices, streaming from these sites should be just as fast, if not faster than before. A better phrase is “mobile optimized” or a less flattering “downgraded” is also accurate."
The semantic difference between something being "throttled" or it being "de-prioritized" has long been a useful way to tap dance around net neutrality concerns. And again here, T-Mobile's eager to avoid media use of the word "throttling," since the FCC's net neutrality rules clearly include a a “bright-line” rule for all technical forms of discrimination, be it throttling, blocking, or "paid prioritization."
The FCC rules prohibit throttling "particular classes of content, applications, or services" and, should Google pursue a complaint, T-Mobile's behavior may qualify. T-mobile's apparent solution? Call what they're doing something else. T-Mobile may also be able to dodge any complaints by insisting that users can disable Binge On at any time. Google's argument, in contrast, is that the program should be opt in, not opt out.
Given the FCC is
casually sending out letters to all ISPs engaged in such zero rated efforts, we'll likely have to wait well into 2016 before we get to see whether or not the FCC buys T-Mobile justifications.
