Binge On Is 'Highly Competitive,' Wheeler Says
T-Mobile’s zero-rating service Binge On shows that the net neutrality order doesn’t force companies to check with the FCC before issuing innovative products, Chairman Tom Wheeler said during a news conference. The service, which exempts some online video products from T-Mobile’s data cap, is both “highly competitive and highly innovative,” Wheeler said. The FCC will “keep an eye” on the service to make sure it doesn’t violate the order’s general conduct rule, he said after Thursday’s open commission meeting.
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That it’s not immediately clear whether Binge On violates the net neutrality order illustrates the problems inherent in that rule, said Commissioners Ajit Pai and Michael O’Rielly in their own post-meeting news conference. Pai said he doesn’t know if T-Mobile has violated the general conduct standard. “Nobody knows,” he said. “No one can get any certainty about how it will be applied."
Critics had said the net neutrality order and the vague general conduct standard would mean companies would have to go to the FCC to get their innovative products preapproved, Wheeler said. “That certainly didn’t happen here,” he said of Binge On. O’Rielly suggested that Wheeler’s statements Thursday are themselves an example of the FCC handing out approval and that the chairman was letting T-Mobile know he supports Binge On.
Binge On doesn’t appear to violate the paid prioritization “bright-line” rules in the Internet order, Wheeler said. The FCC will watch the service to make sure it doesn’t interfere with consumers trying to get to carriers or carriers trying to get to consumers, he said. Several public interest groups said last week (see 1511120045) that Binge On does appear to violate net neutrality rules. Free Press Policy Director Matt Wood said his organization is still gathering data on Binge On. “I’m not sure that it’s violating the order, but I’m not sure it’s not, either,” he said Thursday: Free Press is more concerned with what the service says about T-Mobile’s data cap. If the company is able to let customers using Binge On ignore the cap, it suggests the data cap is “arbitrary” and not needed, Wood said.
“Our customers are incredibly excited about Binge On and the freedom it gives them to stream without worry,” emailed a T-Mobile spokesman. “Innovations like Binge On put customers in control and create a more competitive wireless market.”
Wheeler's comments are reminiscent of the “familiar good cop/bad cop routine,” Free State Foundation President Randolph May emailed. ”Wheeler's statement that the plan is pro-competitive and innovative is commendable. On the other hand, his further elaboration that the FCC will monitor the T-Mobile plan for compliance with the Open Internet Order's 'good conduct' rule is disturbing.” The "good conduct" standard “means anything that Wheeler's Enforcement Bureau says it means on any given day,” May said.