T-Mobile's New 'Binge On' Plan Teeters on the Edge of Net Neutrality Rules

T-Mobile Chief Executive Officer John Legere, who recently announced the controversial "Binge On" streaming data plan. Eduardo Munoz/Reuters

T-Mobile unveiled a streaming plan on Tuesday which allows select streaming apps to play unlimited amounts without docking customers' data limits. It's great for customers who use those services, but potentially comes at the expense of net neutrality, the treasured principle of keeping the Internet open for all.

At its Uncarrier X event in Los Angeles, T-Mobile unveiled its "Binge On" plan, where its users can stream ESPN, HBO, Netflix and others in sprees without worrying about extra costs. CEO John Legere presented the plan as a great deal for both media-savvy customers and for T-Mobile, which is competing with larger phone companies like AT&T and Verizon.

But many net neutrality advocates cried foul, claiming the new plan will allow for the "zero-rating" of certain partner apps—essentially favoring certain companies over others by allowing virtually free services. Zero-rating isn't prohibited by the Federal Communication Commission (FCC), but the plan edges very close to the limits of existing net neutrality rules, which was approved by the five-member commission in February.

"The FCC left a window open for zero-rating to make it a case-by-case scenario," says Electronic Frontier Foundation legal director Corynne McSherry. "That's nominally better, but as a practical matter, an ISP [internet service provider] will end up picking who loses and wins."

Critics of the Binge On plan argue that T-Mobile gave itself a the role of gatekeeper; it will be able to play favorites and reward some companies over others. They worry the plan opens the door for other Internet providers to provide similar plans to compete with T-Mobile and ultimately lead to a fenced-up Internet with cable TV-like bundle plans.

During his Uncarrier X presentation, Legere said any company—even the smaller, upstart companies who have the most to lose in the net neutrality-less Internet world—can apply to be part of Binge On as long as they meet T-Mobile's technical requirements. Legere also attempted to deflect criticism by saying Binge On "is not a net neutrality problem."

But net neutrality advocates are skeptical about T-Mobile's openness. "We can't be really sure unless we know exactly what these technical requirements are," says Barbara van Schewick, a law professor at Stanford University. "What has been so awesome about the Internet is that if we come with any app, we don't have to negotiate with anyone, including ISPs, to get it to the users equally."

The Binge On plan has many caveats for consumers whether they care about the philosophical battle for the soul of the Internet or not. The biggest catch might be that Binge On includes 24 video streaming services in a DVD-standard 480p quality, and not in 720p or 1080p HD video quality. (The plan also does not include YouTube.)

Binge On, in many ways, is a video-platform extension of T-Mobile's Music Freedom initiative, which removed data charges when streaming music from Spotify and Apple Music. Since its launch, Music Freedom has also been under the microscope about whether or not it broke the FCC's regulations.

But neither plan breaks any laws—so far. It is very possible that litigation against T-Mobile will bring the case to the FCC. If they do hear a case, the FCC will be entering open legal frontiers—with the need to fence in certain practices and tame the ISPs.

"I would describe it not as the beginning of the end for net neutrality," says lawyer and net neutrality expert Marvin Ammori. "But likely it's the beginning of a lawsuit against T-Mobile at the FCC to test the FCC's net neutrality rules and nip this in the bud."