Ladies and gentlemen, start your engines! We may be about to see the first case under the net neutrality laws.

Back in November, T-Mobile announced a new service for its mobile customers called “BingeOn,” which allows users to stream video from certain sites without having it count against their data cap. Since this is theoretically open to any video provider, free of charge, so long as T-Mobile can “optimize” the video stream to 480p (which should be a satisfactory bitrate for most users looking at a tiny phone screen) T-Mobile didn’t think it was doing anything except offering their clients another advantage. But net neutrality advocates think it sounds pretty nefarious, and if this case keeps up T-Mobile could find itself defending its practices in court.

"Internet Open" sign
Photo Credit: balleyne cc

To review, net neutrality is a simple name for the idea that all legal web traffic should be treated and accessed equally. It’s founded on ensuring three principles are always prohibited by Internet Service Providers (ISPs): blocking, paid prioritization, and throttling. It’s the latter that most advocates are worried about in the case of T-Mobile. The FCC’s rule clearly states that ISPs cannot lessen lawful Internet traffic on the basis of content or application; essentially, ISPs’ only job should be to move data, not to choose which data is privileged through higher (or lower) quality service.

And though T-Mobile doesn’t seem to be creating a “fast lane” in exchange for payment from websites, they are “optimizing”—which critics note, is itself a misrepresentation of what is actually closer to slowing—all video, in one way or another and privileging certain sites over others. Which is exactly what the EFF found when they tested it, as they wrote in their open letter to T-Mobile:

Our last finding is that T-Mobile’s video “optimization” doesn’t actually alter or enhance the video stream for delivery to a mobile device over a mobile network in any way. 2 This means T-Mobile’s “optimization” consists entirely of throttling the video stream’s throughput down to 1.5Mbps. If the video is more than 480p and the server sending the video doesn’t have a way to reduce or adapt the bitrate of the video as it’s being streamed, the result is stuttering and uneven streaming—exactly the opposite of the experience T-Mobile claims their “optimization” will have.

Given the difference between what T-Mobile implies they do and what we found, we contacted them to get clarification. They confirmed that they don’t do any actual optimization of video streams other than reducing the bandwidth allocated to them (and relying on the provider to notice, and adapt the bitrate accordingly).

T-Mobile has claimed that this practice isn’t really “throttling,” but we disagree. It’s clearly not “optimization,” since T-Mobile doesn’t alter the actual content of the video streams in any way. Even the term “downgrading” is inaccurate, because that would mean video streams are simply being given a lower priority than other traffic. If that were true, then in the absence of higher priority traffic, videos should stream at the same throughput as any other content. But that’s not the case: our tests show that video streams are capped at around 1.5Mbps, even when the LTE connection and the rest of T-Mobile’s network can support higher throughput between the customer and the server.

In other words, our results show that T-Mobile is throttling video streams, plain and simple.

Similar tests have been run by various outlets across the Internet, including Youtube who is not a partner with BingeOn, and they’ve all come to the same conclusion: T-Mobile is lying about its throttling practices. And the CEO of T-Mobile has not taken kindly to that deduction.

“There are people out there saying we’re “throttling.” That’s a game of semantics and it’s [sic] bullsh*t! That’s not what we’re doing. Really! What throttling is is slowing down data and removing customer control. Let me be clear. BingeOn is neither of those things,” said T-Mobile CEO John Legere in a video message. “This is no different than a car manufacturer adding an ‘economy feature’ on your car.”

Except it’s not, because a federal agency hasn’t said economy features in cars is not allowed in a fair market. Legere plays some tricky word games, but essentially not only doesn’t respond to the complaints leveled by net neutrality advocates but twists the issue into sandbaggers trying to bring cool T-Mobile down.

It’s the latest example of cable companies and ISPs testing the limits of net neutrality; Comcast exempts its streaming service from data caps, Verizon charges apps to be free from any data limits, and AT&T rolled out a similar program called “Sponsored Data.” Such zero-rating, or the act of allowing certain sites or apps to fall outside data restrictions, are an ambiguous area of the FCC’s net neutrality rules—one it seems ISPs were ready to exploit. And if T-Mobile were simply zero-rating content that might’ve been indeterminate enough to keep the critics off its back. But though net neutrality does, unfortunately, often exist in the gray area of semantics, if the findings here are accurate then T-Mobile is most definitely throttling, not optimizing content. If that’s the case then T-Mobile may very well be sending its next video defense from a courtroom.

That is, assuming that these issues have some sort of firm guidance by then. The FCC’s net neutrality rules are currently under review themselves at the D.C. Circuit Court of Appeals. And as Peter S. Vogel of the Internet, Information, Technology, & e-Discovery Blog noted, the livelihood of those rules could change depending on how this election shakes out:

Only to make things more complicated Net Neutrality is also a very political issue since the F.C.C. has five Commissioners, of whom the Chair is appointed by the US President and whatever party the President hold a majority of three of the five Commissioners’ posts.  So if a Republican is elected President in 2016 then the control of the F.C.C. would shift and it is entirely possible Net Neutrality would morph into something different.

Also for all we know Congress may decide that they know better and revise the F.C.C.’s power and take control over Net Neutrality.

Add it to the list of things that could be generously shaken up come November. That said, if the FCC decides to take action before then, T-Mobile might mark the first net neutrality case after it became law of the land.