T-Mobile keeps spinning the truth about its video throttling scheme

T-Mobile CEO John Legere is fighting really hard to spin his company’s probable violation of net neutrality rules as some immaculately conceived consumer benefit. After a rant last week whose collateral damage included the Electronic Frontier Foundation, Legere has just published another screed about T-Mobile’s Binge On scheme — and it’s just more of the same misdirection.

To recap: last week, the EFF published an investigation that found T-Mobile was throttling all video traffic over its network, including video downloads, for all customers who had not disabled the Binge On feature that the company automatically enabled for everyone in November. Before the EFF published its report, I even noticed the downgraded video capability on T-Mobile’s network without realizing what was going on:

T-Mobile is talking out of both sides of its mouth on the issue. Legere has euphemistically insisted, repeatedly, that T-Mobile is merely “optimizing” video streams. But spokespeople for his company confirmed both to the EFF and Wired that T-Mobile is indeed throttling internet speeds for customers when they try to stream or download video files from any provider, even those who have not officially partnered on the Binge On program.

Today’s “Open letter to consumers about Binge On” from Legere doubles down on the bullshit. Legere says facts about T-Mobile have been “lost or buried in the dialog over the past week or so,” which is a statement so disingenuous it might make your head spin. Here are some more choice statements from Legere’s latest:

T-Mobile is a company that absolutely supports net neutrality and we believe in an open and free internet.

...here’s the thing, and this is one of the reasons that Binge On is a VERY “pro” net neutrality capability — you can turn it on and off in your MyTMobile account — whenever you want.

T-Mobile is about breaking the mold

Actually, T-Mobile seems to be about breaking the FCC’s 2015 Open Internet Order, which established long-sought after net neutrality rules. Here’s the relevant language from that order:

Clear, Bright-Line Rules

Because the record overwhelmingly supports adopting rules and demonstrates that three specific practices invariably harm the open internet — blocking, throttling, and paid prioritization — this order bans each of them, applying the same rules to both fixed and mobile broadband internet access service.

Yes, that’s right — the FCC (and net neutrality advocates) thought no throttling was so important, the FCC established a prohibition on it as a bright-line rule. Here’s more about the throttling ban from the FCC.

While certain broadband Internet access provider conduct may result in degradation of an end user’s Internet experience that is tantamount to blocking, we believe that this conduct requires delineation in an explicit rule rather than through commentary as part of the no-blocking rule.271 Thus, we adopt a separate no-throttling rule applicable to both fixed and mobile providers of broadband Internet access service:
A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.

With the no-throttling rule, we ban conduct that is not outright blocking, but inhibits the delivery of particular content, applications, or services, or particular classes of content, applications, or services.

The FCC’s net neutrality rules don’t seem to care whether schemes that implement throttling are “FREE,” or whether you can turn them off after having to hunt for the right button in an online dashboard. (As a T-Mobile customer, I can tell you that it’s not immediately clear how to turn off Binge On even on T-Mobile’s website.)

We’re not falling for T-Mobile’s spin, and you shouldn’t either. The only question that remains is whether the FCC will decide to enforce the rules it fought for so many years to create.