Today, it emerged that Netflix has been throttling video streams for those customers which are using the AT&T and Verizon Wireless networks (but not T-Mobile and Sprint customers) to stream its content. From what we know so far, the carriers were unaware of this, and are understandably upset. Netflix’s justification for this partial throttling, according to a Wall Street Journal article, was that “historically those two companies [T-Mobile and Sprint] have had more consumer-friendly policies.” And the overly-simplistic value judgement implied by that quote gets at the heart of why this is wrong.

There are several issues here. Firstly, this treatment is discriminatory but not discriminating – what I mean by that is that the Netflix policy discriminates between networks but treats all users on each network the same, regardless of what data plan they’re actually on. For example, as of December 2015, 11% of AT&T’s smartphone customers are still on unlimited plans. Since December, AT&T has begun selling unlimited plans again to certain customers who take DirecTV and AT&T service. As such, over 1 in 10 AT&T customers have unlimited plans, and that number is growing, but Netflix’s policy takes no account of this. The same applies to Verizon customers. By definition, Netflix doesn’t know which plans users are on. Perhaps I’m one of those unlimited customers at Verizon, or I have a 30GB plan from AT&T, but I’m treated the same as if I’m on a 1GB plan regardless. At the same time, not all Sprint or T-Mobile customers are on unlimited plans either.

Netflix hasn’t been transparent here until it was called out, either with customers or with the carriers. That’s problematic for two reasons – users who aren’t aware have no control either, and Netflix should have given users a choice. The other problem is that users will have assumed degraded video was the fault of poor network performance, which negatively impacts perceptions of the carrier rather than Netflix itself when video is throttled.

Netflix’s justification in a hurriedly put out but opaque blog post is that customers don’t mind, but it has no way of knowing how users really feel, because they haven’t been aware. To be sure, some users are very concerned about data caps, and would choose overages. Simply giving users a choice would have solved the problem without the underhanded approach Netflix has taken. It’s uncharacteristic for a company that’s been so bullish about transparency and fair treatment (and been a huge proponent of net neutrality). Netflix’s current approach has many of the same shortcomings as the original implementation of T-Mobile’s BingeOn plan, which also throttled video without users’ permission. Deliberately degrading video performance without user knowledge or consent is wrong, no matter who does it.

That WSJ quote at the beginning sums up what’s really going on here – except that what Netflix really means is that some carriers have been less friendly to over-the-top video providers by metering bandwidth their customers use. This Netflix policy has very little to do with better serving customers and everything to do with better serving Netflix by getting people to watch more of its videos. If it really wanted to serve customers better, it would make this policy explicit, transparent, and opt-in.