On Tethering, A Response to James Kendrick

Posted on 05 April 2011, Last updated on 05 April 2011 by

I’ve actually been wanting to post this for a while but James Kendrick of ZDNet has finally given me the motivation to do so. Kendrick is a long-time tech writer, formerly of JKonTheRun.com, and I’ve been reading his work for years. It is possible, however, to disagree with someone that you respect. Kendrick’s recent article about tethering at ZDNet is a perfect example.

While he claims to just be the messenger, I believe that Kendrick is promoting fallacious arguments in his article. His thesis is:

…if your carrier asks you to pay for the right to tether (called mobile hotspot), and you manage to do so without enrolling in (and paying for) this plan, then you are stealing service from your carrier.

Aside from fallacious argumentation, Kendrick’s fail-safe is the argument that no matter how you cut it, the carrier’s terms-of-service dictate how you can or cannot use their service (obviously the TOS is written in their favor). However, just because something is written down in a TOS doesn’t make it right, and that’s really the point that we’re arguing here – whether or not it’s right for carriers to charge people extra for tethering, not what they’ve written in their TOS.

In response, I’m publishing a brief term paper that I wrote last year for an English class. While my target audience wasn’t those that are especially knowledgeable about data plans and tethering, I did my best to make the argument understandable to the everyday consumer, which is the vast majority of cellular users, and thus, those that need to understand the issue at hand before change can happen. I’d love for you to read both Kendrick’s piece and my own paper and leave your thoughts here for discussion.

Before you begin reading – Kendrick uses a cable TV analogy to explain his rationale (as I do in my own paper), but I feel that this usage is way off, and I’d like to correct it before we move on. According to Kendrick:

This is no different than the cable theft of old, using unofficial means to get cable TV service without paying the cable company. Most of us don’t like the cable company due to the high fees they charge, but we pay them anyway because to do otherwise is stealing the service. Stealing service like cable thieves is exactly what unpaid tetherers are doing.

This analogy is misleading because customers are already paying for ‘cable TV service’ (the metaphor for a data plan). Continuing the analogy: customers already pay for service, they just want to plug their cable line into a bigger TV, and do cable companies charge more for that? Of course not. Customers are free to plug the service that they pay for into any TV they’d like. Similarly, customers should be able to plug the service that they pay for (data service) into any device that they’d like. You are only paying for specific amount of product (the data coming down the line). By plugging the cable line into a bigger TV, you aren’t getting any additional service from the service provider. Even if you splice your connection to 10 different TV’s, you aren’t getting 10 times the product, you are dividing the product by 10 (if you actually tried to do this, you’ll find that the picture becomes increasingly fuzzy) because you aren’t bringing any additional service down the line by simply plugging it into a different, or multiple TVs. Similarly, if you share your data connection to 10 devices, you aren’t getting 10 times the product. You are dividing the bandwidth by 10 and no additional data is coming down the line over what you are already paying for.

You’ll see that I expand upon this analogy in my paper, and it should be clear why carriers shouldn’t be charging us more for no additional product.

Also another note before I begin: my paper focuses on AT&T because they are the carrier that I use, and the one that I have done the most research on. Things have changed slightly since I wrote the paper (such as the elimination of “unlimited inch data plans), but I’m still using a grandfathered “unlimited inch plan and I’m certain that many others are as well. These issues also apply to pretty much every carrier US carrier that I know of.

Also note that my unmodified title (written just about a year ago) is almost the perfect polar opposite of Kendrick’s!

So here we go:

If You Use Your Phone to Tether on AT&T, They Are Stealing From You

Allow me to propose to you, dear reader, a scenario. You go to the supermarket and pick up an apple. You pay $3.00 for the apple and then go home. Now you have two choices. You can eat the apple, or give the apple to a friend. Unfortunately, giving the apple to a friend will require that you pay the supermarket an additional $5, on top of the $3 that you already payed to purchase the apple. This doesn’t sound one bit fair, does it? You’d probably be pretty mad at the supermarket for attempting to impose an additional fee on you for a product that you’ve already purchased. It doesn’t matter whether you eat the apple, or your friend eats the apple, it’s still just an apple, right? So how can the supermarket justify charging you an extra fee for giving the apple to your friend? It can’t justify it at all, and even a five year old would find flaw with that logic. And yet for some odd reason, people allow the cellphone carrier, AT&T, to get away with something very similar every single day. Every single day, AT&T charges customers extra money for something that they’ve already paid for, just to use it in a different way. And perhaps what’s worse is that they seem to get away with it, without anyone questioning the practice.

Continue reading on page 2…

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31 Comments For This Post

  1. aftermath says:

    This is probably the best article that I’ve read on the site. Thank you first and foremost for actually THINKING about this, and then CARING enough to act on it. Thank you for taking the time to express your opinion to the public and for clearly identifying that this is your opinion. Hopefully, people meet your efforts by starting a conversation around the topic through which we can figure out not who is “right” or who is “wrong” but rather what is in our best interest as consumers and what we will agree to do (or not do) in order to ensure that businesses understanding that if they want to stay in business they’re going to have to serve our best interest (and do little to the contrary).

    You shouldn’t HAVE to be commended for this effort, Ideally, this would be the norm, but instead it is an exceptional happening. That’s too bad because we are at an all time low in terms of where mobile technology is for consumers (it’s great for businesses) and everyday you basically have blogs either purposefully or carelessly pushing agendas and ill advised opinions as if they were inevitable, correct, the only way possible, or even in our best interests as consumers. Having been involved in tablet computing for over a decade and mobile computing much beyond that, I’m connected to many of the people behind the scenes of the coverage that we all enjoy. Over the last several years, I’ve clashed with many of them privately and publicly for falling asleep at the wheel while covering technology. Without betraying confidences or revealing names, some of them have confided in me that, as consumers, they’re also very concerned with the direction in which technology is headed but as those who run blogs and need relationships to companies, they don’t feel like they can challenge “the company line” or speak up on behalf of consumers. It’s a sad state of affairs. The people that we come rely on for interest are doing an enormous job of speaking on behalf of companies, but they pull a lot of punches when talking for us. Your bravery is commended.

    Once again, thanks for your article, and I sincerely hope that people don’t respond as children, arguing about who is “right” and who is “wrong”, but rather as adults who try to figure out how to make the conversation useful and valuable to our mutual benefit as consumers as we move forward.

  2. goodstuff says:

    Very nicely said. I agree with your breakdown 100% and AT&T isn’t the only one doing this as you mentioned. While I can understand carriers not being able to handle 100% data usage (the 9TB or whatever you calculated it to be) they should handle these things better. For example: simply limiting both mobile data to a reasonable amount and not charging more for using it differently.

  3. Ben says:

    Yeah I agree, I’m not expecting carriers’ to be able to support the theoretical maximum for all of their users at once. What they need to be is be upfront with exactly what they claim to be able to support. I could easily run a download on my phone 24/7 and suck down way more data than I would use with normal tethering usage, and based on their current logic, that would be fine and not constitute any extra fee. But as soon as I want to use the data that I’m paying for on a different screen, suddenly they want to charge me more while I’m not actually getting anything extra.

  4. John says:

    Rock solid reasoning. Thanks for the effort. As for the argument that providers cannot handle the theoretical maximum if all users reach it, it doesn’t hold water from a practical point of view. Same thing with banks. Banks do not hold enough cash to cover all cash deposits. If everybody decides to withdraw their cash, not everybody would be able to do it. Is this a threat to bank operations? No

  5. Bartletts4 says:

    You are wrong. Plain and simple you are required to pay extra to use the data in a different way. You know this when you buy the data. If you do not pay to tether you are violating the terms of service, i.e. you are in breach of contract. It may not be fair to require you to pay extra, but that is what you as a buyer agreed to. If you do not want to pay extra do not tether or do not get a plan with the carrier. The other choice is to “steal.” No matter what you say that is what it is.

  6. Ben says:

    From the article above:

    “However, just because something is written down in a TOS doesn’t make it right, and that’s really the point that we’re arguing here – whether or not it’s right for carriers to charge people extra for tethering, not what they’ve written in their TOS”

  7. bartletts4 says:

    You are confusing what is “right” and “fair” with what is “legal.” I agree with you that it neither seems right nor fair to charge customers extra to use the same data in a different way. However, that is not the issue. The issue is having agreed to the TOS are you stealing when you knowingly use data in a way that violates the TOS. The answer is plainly yes. It is similar to a situation where you pay for a hotel room for 2 people (like a data charge) and have 20 people stay in the room (share data without paying extra) you are stealing from the hotel.

  8. Scott says:

    No, He isn’t. If you check your email on a computer or on your cell it is the same. If you go to wikipedia or any other website it is the same. Data is data and it isn’t being used in a different way. It is being accessed through your cell phone on a different piece of equipment. Stop being part of the problem and thinking that because VZ and ATT put this language in their contracts that makes them right. That makes them the 2 biggest games in town and we don’t have too much of a choice. Its like being asked if you’d like to die by being shot or being stabbed. Either way you’re just as dead.

  9. Kalean says:

    Bartletts4 seems to understand that what ATT and Verizon are doing is unfair, and wrong. His assertion that violating the companies’ terms of service is stealing, however, is incorrect. It is violating terms of service, which is not tantamount to theft, but is sufficient reason for a carrier to harass you/terminate your contract.

    Are their Terms fair? Absolutely not. Is violating them theft? Also no.

  10. Kalean says:

    A violation of Terms of Service is not tantamount to theft. Particularly not in an instance where no extra service is being provided when paying for tethering.

    That said, Ben’s article isn’t about whether free tethering is a violation of the TOS, it’s about whether or not the restriction should be in the terms of service at all. Please take it in the manner in which it was intended, as food for thought.

  11. jb82 says:

    well firstly a cap on an unlimited plan really is there for abusers of the unlimited plan who do tether. the point being on a smartphone you are unlikely to hit anywhere near 5gb so it is in effect unlimited. if the plan is specifically for 5gb or similar set amount then I agree that you have paid for that amount of data and it shouldn’t matter how you get it… eg if you use it all up in one day or spread it out over the month. however an unlimited plan has a right to limit you to one device. say i have unlimited refills on a coke in a restaurant… i can’t bring 10 friends and share my unlimited coke with them and pay for only one!

  12. jb82 says:

    personally i believe tethering charges should be scrapped but also unlimited plans. we pay for a set amount and get it in any way we want. then everyone is happy.

  13. John says:

    The point is that AT&T does both: charge extra for tethering AND impose a cap. They could say that if you want tethering, sign for a cap in your data plan. But why pay extra? Is this even legal?

  14. Ben says:

    The difference between your example and what’s actually happening is that the people in the restaurant are getting more product. If you bring 10 friends into the restaurant to drink a coke, they are going to drink 10x more coke than you alone. In the case of “unlimited” mobile data, you are paying for a connection to the internet at a specific speed. It doesn’t matter how many people you hook up to the end of the line, you can still only pull down a finite amount of data (the amount that you are entitled to).

    To accurately represent the situation, you’d need to modify your example to say that you went into a restaurant and purchased access to 1 coke/hour. In which case, you’d be perfectly entitled to share that 1 coke/hour with however many people you want. If you bring in 10 friends or 100 friends, you still only get 1 coke/hour and you have to divide it among your friends. You aren’t getting any more than what you paid for.

    Now imagine this 1 coke/hour scenario… you pay $25 alone for the service, but as soon as your friends walk in the door, the restaurant asks you to pay $50 for the service, even though they aren’t giving you anything more than what you’ve already paid for! This should be illegal.

  15. jb82 says:

    not at all. If the restaurant said unlimted coke but you can only get 10 per day… that still doesn’t mean you can share the 10 with friends. The cap is to stop abusers … not to provide you with a fixed entitlement.

    If you specifically bought 10 individual cokes then you are entitled to do what you like with them.

    You are not buying say 2 cokes per hour that you can share witha friend. You are buying say 2 per hour but in the one glass. There is a difference.

  16. jb82 says:

    in reality the cokes per hour scenario does happen and no one gets mad. I buy unlimited cokes and get maybe 2 and my wife gets 2… the guy at the next table gets 4… so why should i pay twice for my wife and I when the other guy only has to pay once! After all I bought UNLIMITED right?

  17. jb82 says:

    Oh yes and the using more resources argument doesn’t hold either. The unlimited coke i’d share scenario would still hold if there was only one glass (ie one connection with finite speeds). It would be wrong if all 10 of us drank from the one glass and we kept expecting it to be toped up each time with fizzy coke data.

  18. John says:

    No, it is not the same. Putting 20 people in the hotel room means you use more of the hotel’s resources. Using your 5gb plan while tethering does not. The more I read about this the more I wonder whether the TOS itself is legal or not. Nobody steals any service if you decide to tether. You buy a pizza and decide to give a slice to your friend. Should you be charged extra? Insane!

  19. John says:

    Let us give a clear answer to this question : is there any additional service that carriers provide when we tether? Do we use any additional resources when we tether (I’m talking about a capped plan)? If not, the TOS itself doesn’t sound very legal, does it?

    P.S. It is not the same with sharing the same piece of software. We are not talking about sharing the same service among different people. We are talking about sharing the same service among different devices.

  20. jb82 says:

    By all means complain about the specific wording/product offering but what you will not achieve is getting truckloads of data for next to nothing. Get them to remove tethering charges and data charges will have to go up. Only solid competition or regulation will drive down prices.

    But let’s clear onething up… a cap isn’t an entitlement…. it is an upper limit to prevent abuse. You are not paying for 5gb of data to do what you like with it…. you are paying SPECIFICALLY for whatever you use on one device up to a maximum. If you don’t like it don’t buy it and they will have to change the product if enough don’t want it.

  21. jb82 says:

    Lets get them to change caps to entitlements and then i’m with you.

  22. andyroo says:

    its not surprising that people use other means to get the data onto their laptop.

    i am on three in the uk who have recently introduced all you can eat data, on an iphone 4, you can use this for tethering, im downloading 100+gigs of data a month for a grand monthly total of $57 US, £35 GBP, €39. Its not worth a penny more to tether and I for one simply wouldnt pay.

    other carriers are offering free tethering on new contracts only, they think they are doing you a favour by offering it for free but its your data anyway.

  23. Tony Holden says:

    To be honest I’m not sure about the legalities, but to use the coke analogy, the correct way to view it is that you go to a vendor selling coke, for ‘n’ pounds or dollars you get unlimited coke sent to a cup provided by the vendor, that’s your phone and/or your sim card. According to the vendor you may only drink that coke from the cup provided by them, if you wish to pour the content of that cup into a different cup to actually consume it you must pay for the coke again.

    Frankly, in that model I don’t see how that can be legal, but, if you think about fair use, there is a difference. If you use an android phone you will tend to either be using the data in an app, or in some way in which data usage is reduced. If you are using your android phone to tether your netbook or laptop the data usage is going to rise, you aren’t getting data optimised for a 4″ screen, you’re now sucking down full size data.

    If you go back to the analogy of the unlimited coke, when you’re getting your unlimited data in their cup it takes so much syrup to make the coke, when you drink it out of your cup, it takes four times the amount of syrup, should they be allowed to charge for the extra when they have to pump it at four times the speed for the same time period?

    I think that there is a case to be made for a small supplementary charge for tethering, it’s not so much about data quantities, rather it’s about bandwidth, browsing on a phone is going to use less than browsing on a netbook or laptop.

  24. KsE91HolyDiver says:

    Yes, but the bandwidth is always limited, this isn’t a high speed Comcast connection, it will be at the same speed whether you use your laptop, phone, ipod touch, or tablet to tether or get the data alone.

  25. Scott says:

    Don’t forget, you can only drink that coke at a maximum of 1/2 glass per hour.

  26. Angelkiller says:

    The carriers are counting on the fact that you will use more data on your computer than on your phone (ie. netflix, multiple tabs, easier to use…), so in effect the ‘unlimited’ data plan on your phone will use much much less data overall if only used on your phone. More and more people will learn about tethering and try to use it for ‘free’ which will burden the network more than intended – whether or not you want to admit it. The max download speed has nothing to do with the amount of data usage difference between using the internet on a pc as opposed to using it on a phone, plain and simple. I have 10 tabs up on my browser now as I type this. No one can practically use 10 tabs on a phone, seriously. I don’t want to pay extra for tethering either, I admit it, but let’s stop haggling about the semantics of the term ‘unlimited data plan.’ The carriers have a point, and its not going to change no matter how much we cry about it.

  27. Holy Diver says:

    But that’s why they left behind the unlimited plans dudester. You should be allowed to use all 5GB of your new limited plan in any way you want.

  28. Holy Diver says:

    But that’s why they left behind the unlimited plans dudester. You should be allowed to use all 5GB of your new limited plan in any way you want. Doesn’t that seem fair?

  29. Holy Diver says:

    Duplicate comments damn you!!

  30. Scott says:

    I reply to this only to Salute Ronnie James Dio! I hope he found the Sacred Heart!

  31. Kalean says:

    The continuing argument about tethering is easily settled. Ben, please take note of this, as you seem the intelligent type who can easily add it to your repertoire of arguments.

    In the Matter of Use of the Carterfone Device in Message Toll Service, 13 FCC 2d 420 back in 1968 ( http://itlaw.wikia.com/wiki/Carterfone_decision ), the FCC ruled against the ATT’s stance that it could control what kind of devices were attached to its network, so long as they were privately beneficial, but not publicly harmful. This is the reason we’re allowed to use answering machines and cordless phones and modems.

    This ruling has never been over-turned, and in fact should technically apply to the cell phone networks as well. So it could be argued that by charging you to hook your computer up through your phone, your cell phone provider is breaking FCC regulations.

    Food for thought.

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