Hey T-Mobile: 2007 Called and it Wants its Net Neutrality Complaint Back


Yesterday, the website TmoNews broke the story that T-Mobile is planning on throttling customers who use bittorrent on their wireless connections.  The internal T-Mobile memo explains that these users will be throttled because their heavy use is “abusing” the network. 

We’ve Seen This Before

This may sound awfully familiar.  Back in 2007, Comcast decided to start throttling bittorrent as well. After a formal complaint and investigation, the FCC found that Comcast’s decision to single out bittorrent for blocking violated the open internet rules that were in place at the time.   Specifically, the FCC found (in a bipartisan vote) that:

“Although Comcast asserts that its conduct is necessary to ease network congestion, we conclude that the company’s discriminatory and arbitrary practice [of targeting and interfering with peer-to-peer applications] unduly squelches the dynamic benefits of an open and accessible Internet and does not constitute reasonable network management.”

And yet, strangely, T-Mobile has decided to revive this practice by singling out heavy data users who are making use of peer-to-peer applications.

Different, Yet Not Different

Of course, T-Mobile may argue that what it is doing is different.  They may argue that they are wireless, and the most recent open internet rules clearly decided to treat wireless different. They may also argue that they are only singling out bad users who are using peer-to-peer service.

Unfortunately, these justifications only highlight why strong net neutrality rules are so important.  Comcast arguably did the economically rational thing when it decided to single out peer-to-peer in 2008.  At the very least, it made the same arguments that T-Mobile makes about a “small number” of subscribers ‘abusing’ the system. T-Mobile – which lacks affiliation with a cable service and therefore has no anticompetitive reason to block p2p -- is also operating in an economically rational way to minimize its costs when it decided to single out peer-to-peer in 2014. And, as the FCC found in 2008 and again in 2010, this economically rational decision by a network provider “unduly squelches the dynamic benefits” and undermines the “virtuous cycle” made possible by a genuinely open internet.

How often does history need to repeat itself before we learn that, absent a strong network neutrality rule, carriers will rationally chose to block content and services to benefit their bottom lines at the expense of the broader public? As in 2008, in 2014 using peer-to-peer protocols is not illegal.  As in 2008, singling out some types of uses for special punishment is discriminatory and arbitrary.  As in 2008, this illustrates why robust net neutrality rules are so important. Yet radically different network operators – Comcast in 2008, T-Mobile in 2014 (AT&T in 2012 if we count their initial decision to limit use of Facetime)  -- keep making the same decision to block content and applications in precisely the same way.  

Decisions About The Value of Networks

As we keep saying, this isn’t about antitrust or market power or competition. Networks keep making the same decision whether they are vertically integrated incumbents like Comcast or scrappy competitive “uncarriers” like T-Mobile. This is about fundamental values. Do we want a broadband network where network providers decide what we do with our online connection based on their rational, profit-maximizing calculations? Or do we want a broadband network that reflects the fundamental values of our society of fundamental fairness, freedom and opportunity?

Furthermore, T-Mobile’s behavior illustrates why treating wired and wireless internet differently is not good policy.  If one of the paradigmatic example of a net neutrality violation is legitimate as long as it happens on a wireless connection, we can no longer seriously treat wireless as a first class way to access the internet.  That is a detriment to the millions of people (many of whom are rural, economically disadvantaged, or come from other traditionally marginalized communities) who rely on wireless as their only connection to the internet.  It should also retire any aspirations we may have to use wireless as a legitimate way to connect far-flung communities to the internet.

Bad Outcomes Do Not Require Bad Motives

None of this means that T-Mobile is acting with malice.  In fact, one of the reasons we pushed so hard to prevent T-Mobile from merging with AT&T is because T-Mobile has a record of innovating and pushing the industry in pro-consumer directions.  Since that time, T-Mobile has repeatedly driven the wireless industry in the direction of lower prices and innovative service and equipment plans.

Which only makes our point that we need strong network neutrality even stronger. This isn’t about “good actors” vs. “bad actors.” This isn’t about antitrust or competition. This is about what FCC Chairman Wheeler calls the “Network Compact.”

Communications networks are not like toasters or cars or almost anything else in our society.  Networks form infrastructure critical for all sorts of civic, economic, educational, and social activities.  Networks operators don’t have to be “bad” in order to work in ways that degrade all of those activities. To the contrary, it sometimes economically rational for the network operator to behave in ways that undermine the value of the network to society as a whole.  Because of this, we simply cannot allow allow network operators to choose which types of communication is legitimate and which ones are not. And because of this, we need strong net neutrality rules as soon as possible.


Image credit: Flickr user CWAUnion

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