Is T-Mobile's Binge On Legal? Law Professor Says No

T-Mobile made waves when it launched its Binge On free video streaming service last year, but it hasn't exactly been smooth sailing for the Uncarrier lately. Critics of the service, which lets subscribers watch streaming video from select services without it counting against their monthly data plan, have charged that Binge On violates net neutrality. And a new report from a Stanford University law professor figures to add fuel to that fire.

The Stanford report by law school professor Barbara van Schewick contends that Binge On "gives providers in the program a competitive advantage" and that "T-Mobile's selection of services harms competition and stifles free expression." It even goes as far as to say that "Binge On's discriminatory effects are here to stay," and that "Binge On sets us on a slippery slope."

MORE: How to Turn Off T-Mobile Binge On and Why You'd Want To

With Binge On, T-Mobile delivers streaming video at reduced quality to minimize data consumption. Subscribers with 3GB plans or higher can watch video from participating streaming services without it affecting monthly data allotments. Just this week, T-Mobile added Amazon Video, Fox News, Univision Now, and WWE Network to Binge On, bringing the total number of supported services to more than 40.

Van Schewick says in the report that Binge On, in its current form, "harms user choice, innovation, competition and free speech online," and "is likely to violate the FCC's general conduct rule" as a result.

The FCC's net neutrality rules, passed last year, prohibit things like preferential treatment for content providers who pay for better access. The rules look to give users access to legal online content without interference from wireless providers.

We reached out to the FCC to see if the Stanford report had legs, and while it declined to comment on the report, a representative did remind us that FCC Chairman Tom Wheeler had tasked the Commission's Wireline Competition Bureau and Wireless Telecommunications Bureau "to collaborate on an informal review of new offerings." The FCC says there's no timeline on sharing the findings from that review.

T-Mobile is not the only Internet service provider that could run afoul of the FCC's net neutrality policy. AT&T and Verizon offer sponsored data programs that let companies pay to make their content available to customers without costing the customer any bytes out of their data allotment.

T-Mobile has yet to respond to our queries, but in an open letter earlier this month, CEO John Legere wrote that T-Mobile "absolutely supports Net Neutrality and we believe in an open and free Internet." Legere goes on to claim that Binge On is pro net neutrality, because it can be turned "on and off at will."

"We don't charge any video streaming companies to participate and every service provider is welcome," Legere added. "All the partner has to do is a minor amount of technical work to help us identify their video data reliably."

At best, programs such as Binge On and Verizon's FreeBee sponsored data exist in a grey area that regulators are taking a closer look at. Considering that the FCC's Wheeler has praised Binge On as an innovative service and that zero-rating plans in general tend not to raise the FCC's ire, it seems unlikely that these sorts of services will be deemed illegal.

Still, that doesn't mean the net neutrality concerns are invalid. Binge On does have real consequences for content sources that aren't part of the program. As a T-Mobile customer who uses Binge On, I've found myself avoiding YouTube when I'm not at home, favoring content from Hulu or Netflix on the go to conserve my data. YouTube is not one of the 40-plus partners that T-Mobile streams free with Binge On.

Also, the technology that enables T-Mobile to determine the source of video streaming content has been proven to slow down and degrade the quality of data coming in from all sources, marring the viewing experience of its subscribers. YouTube has complained that the carrier is throttling its video traffic by downgrading stream quality without consent.

The affected carriers and the FCC have to tread carefully in navigating the issues in this nascent category, and we hope to hear something more definitive soon.