T-Mobile USA will soon meet with the Federal Communications Commission about whether its controversial “Binge On” program violates network neutrality rules. But even though T-Mobile is throttling video—and the rules ban throttling—the carrier might be able to convince the FCC that an exception should be made.

The rules—which face a court challenge from a wireless industry trade group that T-Mobile belongs to—say that Internet providers, including mobile carriers, “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.”

Binge On throttles content based on its type, forcing a downgrade of all video to lower resolution. That’s a clear violation, right? The Electronic Frontier Foundation (EFF) argues that it is , saying that “throttling all traffic based on application type… obviously violates the FCC’s Open Internet Order.”

T-Mobile is throttling content even when the network isn’t congested, the EFF said, “mak[ing] it clear that this throttling is not being used for reasonable network management.”

But not so fast, legal experts say. We consulted advocacy groups Public Knowledge—which supported the FCC’s Open Internet Order—and TechFreedom, which opposed it. While the two groups have different views on net neutrality, they each have lawyers who believe the case against T-Mobile is far from clear-cut.

Public Knowledge Senior VP Harold Feld, an attorney, said he doesn’t have a solid opinion on whether T-Mobile is violating the no-throttling rule.

“T-Mobile is not denying the essence of what EFF is saying,” Feld told Ars. “What T-Mobile is really arguing is: (a) they inform subscribers that this will happen to all video if they don't opt out of Binge On; and (b) this should not count as ‘throttling’ under the rules because it is user-controlled and has positive benefits to the user of extending the amount of video a user can get under the cap. Hence T-Mobile's use of the word ‘optimizing.’ It's like the Internet meme, ‘see I fixed it for you.’ This makes for a very complicated case and not a simple slam dunk.”

Berin Szoka, who practiced Internet and communications law and is now president and founder of TechFreedom, told Ars that T-Mobile has a strong argument that it isn’t violating net neutrality rules.

“It’s not entirely clear whether the no-throttling rule bars throttling programs where users can opt-out (or where they have to opt-in),” Szoka said. The FCC’s Open Internet Order says the no-throttling rule “does not address a practice of slowing down an end user’s connection to the Internet based on a choice made by the end user.”

T-Mobile could also argue that reducing data usage of video is reasonable network management because extensive video usage can cause congestion, and Binge On is "a way of better managing the huge crunch of video on its network," Szoka said.

T-Mobile is throttling video streams and downloads to about 1.5Mbps, according to EFF testing. Resolution is downgraded to 480p or sometimes better.

T-Mobile is slated to meet with the FCC by January 15.

Binge On’s key components

We’ve described how Binge On works in previous articles but here’s a refresher:

All video is downgraded in quality in order to reduce the amount of data customers use, meaning they can do more stuff on their phones before hitting their high-speed data limits.

Video from certain services, such as Netflix and Hulu, can be streamed without counting against a customer’s data cap. This is known as “zero-rating.”

Only video services that partner with T-Mobile get this data cap exemption, but T-Mobile doesn't charge content providers for zero-rating.

YouTube and other services that haven’t worked with T-Mobile to get a data cap exemption are still throttled, streaming in lower quality and using less data than they normally would.

Binge On is enabled by default for all customers, but they can turn it off in their account settings.

Even customers who pay extra for unlimited smartphone data have Binge On turned on by default. Unlimited data customers do face a limit on mobile hotspot usage, so they could benefit from data cap exemptions and lower data usage if they use the hotspot to stream video to other devices.

T-Mobile notified customers before enabling Binge On, but the EFF still argues that the program should be opt-in rather than opt-out in order to “obtain meaningful customer consent.” To be neutral, T-Mobile should also zero-rate all video, since the company can clearly recognize video streams from providers that aren’t part of Binge On, the EFF said.

“If T-Mobile truly wants to be neutral, then all throttled videos should be exempt from customer data caps,” the group wrote.

FCC Chairman Tom Wheeler initially called Binge On “pro-competition” and “pro-innovation,” but now he wants a closer look. The FCC asked T-Mobile for a meeting to discuss whether the program conflicts with the goals of net neutrality. (The FCC also requested meetings with Comcast and AT&T about different zero-rating programs.)

The FCC doesn’t yet have a statement on whether it believes Binge On violates net neutrality rules, a commission spokesperson told Ars yesterday.

The main argument against zero-rating is that it steers customers toward specific online services instead of giving all providers an equal shot at consumer attention. Zero-rating isn’t banned by the FCC’s net neutrality rules, but the FCC can judge on a case-by-case basis whether a particular implementation of zero-rating "unreasonably interferes" with the ability of consumers to reach content or the ability of content providers to reach consumers.

If there is something close to a clear-cut violation of the FCC’s net neutrality rules here, it would be T-Mobile’s video throttling. YouTube doesn’t like it, saying that “Reducing data charges can be good for users, but it doesn’t justify throttling all video services, especially without explicit user consent.”

T-Mobile’s John Legere: It’s bullshit

T-Mobile CEO John Legere fired back at critics today in a blog post and video. Using the word “throttling” to describe T-Mobile’s video downgrading is just “semantics” and “bullshit,” he said.

“What throttling is is slowing down data and removing customer control,” Legere said. “Binge On is neither of those things.”

While Binge On streams video at lower bit rates, using less data, the data that is delivered to consumers isn’t slowed down, he said.

Binge On launched with 24 partners, has added 14 new ones including PlayStation Vue today, and 50 other service providers have applied to be included, Legere said.

We asked T-Mobile if it's scheduled a meeting with the FCC but did not receive an answer.

Lots of questions, few easy answers

Szoka outlined a few more arguments that T-Mobile can make to defend Binge On to the FCC. The EFF says the “reasonable network management” exception does not apply because T-Mobile is degrading video even when the network isn’t congested, but it’s more complicated than that, Szoka said.

“The FCC specifically refused to adopt a proposal made by net neutrality hardliners at Access Now that network management techniques could only be used temporarily ‘to minimize the effects of congestion,’” according to Szoka. “Instead, the FCC approvingly cited T-Mobile’s explanation of the complexity and unpredictability of congestion on wireless networks, which can ‘fluctuate by the minute and second.’”

Limiting Binge On only to times when the network is congested "may sound good in theory but it’s hard to see how it would work in practice, since that might mean turning it on and off during a single video play," Szoka said. "T-Mobile would have to constantly notify the user, mid-video, that the data was, and then wasn’t, being counted against their data plan. Or, T-Mobile would have to just give away all video streaming—again, something that sounds great but would probably be so costly that the carrier would simply have to end the program.”

There’s also an innocuous reason for T-Mobile only zero-rating video from participating video providers, Szoka said. “In order to be sure they’re whitelisting all of a provider’s traffic, they need basic technical data to make sure they don’t miss some sources—and thus ensure that consumers don’t get billed for video streams T-Mobile’s software missed,” he said.

Feld said Binge On raises legitimate questions.

“If it's a consumer choice, then shouldn't the choice be 'downgraded video is zero rated', not 'get zero-rated Netflix and everyone else is downgraded anyway,’” he said. “Or is it fair for T-Mobile to say, ‘we want you to downgrade video, and as a bonus we'll give anyone who works with us to reduce the bandwidth used for video a free pass from our data cap’?”

There’s also the question of whether T-Mobile’s disclosures to consumers are clear enough and whether fairness to consumers would “require opt in rather than opt out,” Feld said. “These are all fact-specific inquiries that are not easy to answer.”

Widespread throttling could prevent video providers from investing in high-definition and 4K technology, Feld said. In this way, broadband companies like T-Mobile ”can warp the development of associated industries by making certain kinds of services hard to provide on a nationwide basis,” he said.

But it might be reasonable for the FCC to treat T-Mobile differently from Verizon and AT&T, because its network is more constrained than those of the market leaders.

“Should there be one rule for all providers, or should we take into account that T-Mobile is competing against the two dominant mobile firms? Should we take into account that T-Mobile has higher data roaming costs and higher special access costs for backhaul than AT&T and Verizon?” Feld asked.

All these questions make it clear that Binge On could have both positive and negative impacts on consumers. Though Wheeler’s early comments on Binge On praised the program, he also said from the beginning that the FCC would "keep an eye on it" and measure it against the net neutrality order's guidelines. The FCC could still recommend changes, and we’ll be watching to see what happens.