Clarifying The Bullshit From John Legere: What T-Mobile Is Really Doing And Why It Violates Net Neutrality

from the let's-be-clear-here dept

Tue, Jan 12th 2016 11:37am — Mike Masnick

Earlier today we wrote about the latest misleading claims from John Legere and T-Mobile about its BingeOn program. I've seen some confusion some of the discussions about this -- some of it thanks to Legere's misleading claims -- so I wanted to go through exactly what T-Mobile appears to be doing and why it's problematic. Also, with that, I wanted to highlight the key part of the FCC's net neutrality rules regarding throttling, and the one single paragraph that T-Mobile appears to be banking on to protect it from getting slapped around.

First, let's be clear: T-Mobile wants to pretend that this is a "semantic" dispute about what it's doing, but that's bullshit. From the beginning the company has been flat out lying about its actions. That may get it in trouble in two ways -- first for violating the bright-line "no throttling" rules and for violating the corresponding transparency rules as well.

So what is T-Mobile doing: if you're a T-Mobile customer and you visit a page to stream or download video (whether or not it's a BingeOn partner), T-Mobile is automatically slowing down your bandwidth to about 1.5 Mbps. That's the throttling bit. What T-Mobile is telling people is that it's "optimizing" the video to a lower resolution. That may be true with some partners, but it's not true of non-partners, especially ones that are encrypted, such as YouTube, where T-Mobile has no way of "optimizing" the video. Instead, even with encrypted streams, since the metadata is still there, it can tell that you're, say, suddenly getting a lot of data from YouTube, and then it automatically slows down the bandwidth.

T-Mobile is hoping that at the server end, YouTube or any other video provider will see this slow bandwidth and say "oh, there's a narrow pipe here, so we should degrade the video down to lower resolution. So, if there's any "optimization" going on, it's actually happening at the server end after T-Mobile has basically tricked them into thinking there's a slow connection. But, in many cases, that doesn't happen, and the end result is not optimized video, or faster video, or even (as T-Mobile keeps claiming) getting to view 3x the amount of data under existing data caps. Instead, it's just the same video at the same resolution... but comes in much more slowly with lots of buffering.

So, to repeat: don't fall for John Legere's spin. The "proprietary technology" he keeps touting is not optimizing non-partner video. It is doing one thing and one thing only: and that's throttling the video.

Now, on to the FCC's rules. Let's look at what the rules pretty clearly say:

A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, 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.

Throughout the FCC's statement on the rules, it notes that this is a bright line rule.

With the no-throttling rule, we ban conduct that is not outright blocking, but inhibits the delivery of particular content, applications, or services, or particular classes of content, applications, or services. Likewise, we prohibit conduct that impairs or degrades lawful traffic to a non-harmful device or class of devices. We interpret this prohibition to include, for example, any conduct by a broadband Internet access service provider that impairs, degrades, slows down, or renders effectively unusable particular content, services, applications, or devices, that is not reasonable network management. For purposes of this rule, the meaning of “content, applications, and services” has the same as the meaning given to this phrase in the no-blocking rule. Like the no-blocking rule, broadband providers may not impose a fee on edge providers to avoid having the edge providers’ content, service, or application throttled. Further, transfers of unlawful content or unlawful transfers of content are not protected by the no-throttling rule. We will consider potential violations of the no-throttling rule under the enforcement provisions outlined below.

We find that a prohibition on throttling is as necessary as a rule prohibiting blocking. Without an equally strong no-throttling rule, parties note that the no-blocking rule will not be as effective because broadband providers might otherwise engage in conduct that harms the open Internet but falls short of outright blocking. For example, the record notes the existence of numerous practices that broadband providers can engage in to degrade an end user’s experience.

From that, it seems fairly clear that what T-Mobile is doing violates the no throttling rule. It is slowing down a class of content that is not for anything having to do with reasonable network management.

But T-Mobile keeps harping on the fact that this is "the user's choice" and even claimed throttling is only throttling if the user has no choice. That's because of the next paragraph in the rules -- and this seems to be the entire crux of T-Mobile's argument for why it's not violating the rules:

Because our no-throttling rule addresses instances in which a broadband provider targets particular content, applications, services, or non-harmful devices, it 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. For instance, a broadband provider may offer a data plan in which a subscriber receives a set amount of data at one speed tier and any remaining data at a lower tier. If the Commission were concerned about the particulars of a data plan, it could review it under the no-unreasonable interference/disadvantage standard. In contrast, if a broadband provider degraded the delivery of a particular application (e.g., a disfavored VoIP service) or class of application (e.g., all VoIP applications), it would violate the bright-line no-throttling rule. We note that user-selected data plans with reduced speeds must comply with our transparency rule, such that the limitations of the plan are clearly and accurately communicated to the subscriber.

It's this paragraph that is going to be scrutinized like crazy. T-Mobile insists that because you have the choice to turn BingeOn off, that means that this is "based on a choice made by the end user" and thus the "no throttling" rule doesn't apply.

That seems like a difficult argument to sustain, given that T-Mobile made the initial choice for all of its users. So that initial choice was not made by the user, even if they can (through a convoluted process) turn it off. Separately, the second part that I bolded above appears to totally undermine T-Mobile's argument. It is degrading a class of applications (all video applications) and thus, the FCC rules note, it violates the bright-line no-throttling rule.

There is, separately, the issue of transparency. T-Mobile claims that it was transparent about all of this, but I don't think that's actually true. As we've covered, it really buried and hid the fact that BingeOn applied to non-partner videos, and did so in a confusing way. It also lied about the optimization and the claim that it couldn't even do anything to YouTube videos at the very time it was absolutely throttling them. That's not very transparent. On top of that, by continually falsely claiming that this was "optimization" not "throttling" and even claiming that it would "speed up" videos, rather than slow them down, I do wonder how the company can claim it was truly transparent.

On that front, T-Mobile has been relying on claims that it emailed and texted customers about the move. I have looked and I have received no such emails or texts. In fact, here are all the texts I've received from T-Mobile since August. Note the lack of any text about BingeOn.

Of course, who knows how the FCC will eventually deal with this, but the claim that the company is optimizing, rather than throttling is flat out wrong. It's a lie. The claim that it's respecting the net neutrality rules by letting you opt-out is questionable at best, and most likely false, as the consumer made no initial choice for the throttling. It's moves like these that raise serious questions about just how "consumer friendly" T-Mobile is really being, and which are seriously undermining trust in the company.

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Filed Under: bingeon, fcc, john legere, net neutrality, throttling, zero rating
Companies: t-mobile

31 Comments

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clemahieu (profile), 12 Jan 2016 @ 12:13pm

Fixing regulations with regulations
Back when creating the net neutrality rules was being discussed, myself and others argued that while the concept of net neutrality was positive, realizing it through more regulations when existing regulations had failed was unlikely to succeed. We argued that in order of regulations to work, people need to be paying attention to the issue and when people stopped paying attention to it, the industry would come in and change the rules again.

We argued the only long term solution was to find a way to naturally allow more competition in the market since that system can largely self regulate without constant maintenance. This is genuine market competition, not artificial divide-up-ma-bell competition.

Now we have a case where net metrology rules were enacted, including rules that limit new players coming in to the market and favors companies with industry lawyers that understand the mountain of regulations, and the industry comes in and guts the neutrality regulations and leaves the cronie shell.

Since the exact predicted scenario is playing itself out, just as it has before, I don't know how, in good faith, it can continue to be argued that net neutrality rules will work or were a good idea in the first place.
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Anonymous Coward, 12 Jan 2016 @ 12:23pm

I actually did get a text about BingeOn. I never did anything about it though because I don't think I've ever streamed video on my phone.

To be clear, if T-Mobile had offered this as an opt-in rather than opt-out service, there would be no network neutrality issues then, right?
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Anonymous Coward, 12 Jan 2016 @ 12:24pm

Re: Fixing regulations with regulations
What in the world are you talking about? T-mobile hasn't gutted any regulations. The new net neutrality rules have hardly been tested, much less gutted or proven useless.
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James Burkhardt (profile), 12 Jan 2016 @ 12:25pm

Re: Fixing regulations with regulations
I hardly call 8 pages a mountain of Regulations.
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Anonymous Coward, 12 Jan 2016 @ 12:27pm

Re:
BTW, the text said:

We recently optimized video streaming so you can watch more video than ever before with Binge On. Only from T-Mobile. Check out how it works. You can change your settings at any time. See details:

Then there was a shortened link to explore.t-mobile.com that contained a unique identifier so they could track if you clicked the link.
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James Burkhardt (profile), 12 Jan 2016 @ 12:28pm

Re:
Not a violation of the Net Neutrality rules laid out by the FCC. It remains a violation of the Principle of Net Neutrality as Techdirt Defines it - preventing an ISP from picking winners and losers by providing preferential treatment to one or more players
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Anonymous Coward, 12 Jan 2016 @ 12:32pm

Re: Re: Fixing regulations with regulations
He is right, the FCC's own regulation of the markit created the need for Net Neutrality to being with with all of the creation of telco monopolies, and while the rules may not be fully tested yet, you seem to stupidly believe that the FCC the progenitor of these problems is some how going to solve them.

Right now the market would be in a better place WITHOUT the FCC's regulation since they are corrupt. The FCC is a paid whore for telco business with endless revolving doors between them and the companies they "supposedly" regulate!

Get real... how many times do you plan to watch them cause the problems and FAKE solve them before you get a clue?
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Anonymous Coward, 12 Jan 2016 @ 12:41pm

Re: Re:
This does not sound like Techdirt's is coming up with their own definition. Even though they should change the name of this site to "Mike'sPersonalBattlewithJohnLegere.com" Mike does a good job in showing how they are violating net neutrality.
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Anonymous Coward, 12 Jan 2016 @ 1:00pm

Re: Fixing regulations with regulations
I've got a simple answer:

If you don't try skirting around the net neutrality rules, then there's no barrier to entry. The barrier is only there for companies attempting to pull off stunts like this (which I guess is a bit of a barrier to competition, as this probably increases T-Mobile's revenue stream).

Existing regulations failed because they didn't address net neutrality at all. You had a number of big players starting to dip their toes in tiered networking -- thankfully all that dried up pretty quickly when the net neutrality rules went into effect.

So that leaves us with situations like this one. This one shows that people ARE paying attention, and that, because of net neutrality, not only is T-Mobile creating its own PR disaster by attempting to skirt the net neutrality rules, it's likely that the FCC will eventually have to step in and slap their hand as well. T-Mobile won't be able to keep this program going as-is; at a minimum, they'll have to clarify the messaging and turn it off for existing customers, only turning it on by default for new contracts, and customers who go over their quota, where the details are explained.

That's how, in good faith, it can continue to be argued that net neutrality rules will work and were a good idea in the first place.

In a perfect world, light oversight of a truly competitive market would be preferred, but that's unlikely to happen without significant congressional reform. So this is the next best thing.
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PRMan (profile), 12 Jan 2016 @ 1:06pm

Some things I noticed
"subject to reasonable network management"

This wasn't bolded by Mike, but may come up later. As video is the highest-bandwidth service, they could easily argue that they are managing bandwidth with this move.

"clearly and accurately communicated to the subscriber"

Also not bolded by Mike, but addressed and the communications from T-Mobile have been anything but clear or transparent.

"even if they can (through a convoluted process) turn it off"

Pushing a button on the home page is as far from convoluted as is virtually possible. The only thing less convoluted would be a popup on the phone itself.
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Anonymous Coward, 12 Jan 2016 @ 1:12pm

It's a disservice to the technology industry when the CEO of the last US carrier company to carry the iPhone acts in a way that it "knows" what your device can support; and makes the best decision for you.

When devices are available for purchase at retail in the company's own stores can create and capture video at 4K resolution (and also display that level of resolution), it questions the entire argument. Apple Retna displays are amazing.

It seems T-Mobile's network can't sustain or support the level of customer growth; which is a contributing factor to its 200% increase in stock value. In turn, the company enabled bandwidth management by default for its 60,000,000 customers. One company's need to manage customer usage and reset customer expectations doesn't necessarily mean throttling should be an acceptable practice.

The service sold is governed by Net Neutrality which requires best-effort on behalf of the company selling the service and furnishing the bill. However, the practice of Zero-rating data transmission with a requisite throttled rate, even if it's "unlimited" doesn't constitute a best-effort. Instead, it becomes the creation of a tiered business model with strings attached related to speed of delivery of the service billable on the rate plan.

Increasing unlimited data plans from $50 to $95/month over the span of 24 months is just another way to raise yet a barrier when it comes to using the service. T-Mobile raised unlimited data to $95/mo the day it started "Binge On".
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Anonymous Coward, 12 Jan 2016 @ 1:18pm

Re: Re:
Even if the program was Opt-in, what are you opting for throttling? I don't think T-Mobile is even transparent enough to tell users what is being throttled. Are they picking specific streams based on TCP/UDP port numbers, Source IP servers, specific CDN networks? Face it, John Legere pretty much shot himself in the head by claiming it's not throttling. If they were honest and open about what exactly they are doing, perhaps then I would say it wouldn't violate NN if they made it opt-in.
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Anonymous Coward, 12 Jan 2016 @ 1:35pm

Re: Some things I noticed
They are somewhat caught between a rock and a hard place. They have not mentioned the network management in their communication, however lacking it has been.
Arguing that they did it for "reasonable network management" would admit that their communication wasn't accurate.

Regardless, there certainly seems to be room for some coffee and mean words from FCC to T-mobile over this. The only question is how cheap the coffee gets and how mean the words will be!
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Anonymous Coward, 12 Jan 2016 @ 2:06pm

and dont forget that the bullshit lies about some people needing to be throttled because of the amount of data they are using and how it's unfair on other users, is exactly that, bullshit lies!!
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ysth (profile), 12 Jan 2016 @ 2:16pm

proprietary technology
I thought the other thing their "proprietary technology" did was identify what might be a video (even if encrypted).
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Anonymous Coward, 12 Jan 2016 @ 2:18pm

And this is the critical moment.
If nothing is done to punish t-mobile, then Net Neutrality is dead.
If the punishment is LESS than the benefit t-mobile obtained, then again Net Neutrality is finished, as companies will take the small punishment for the unjust big reward.

What needs to happen is T-mobile needs to be fined AT LEAST 100x the profits it made during the throttling period, even if (and I can't stress this strongly enough), even if it means T-Mobile collapses and leaves the United States completely.

By stamping HARD on this behaviour at the first breach, it will send a very VERY strong warning to every other ISP that Net Neutrality is here to stay and attempting to breach it has extremely damaging consequences.
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Anonymous Coward, 12 Jan 2016 @ 2:18pm

And this is the critical moment.
If nothing is done to punish t-mobile, then Net Neutrality is dead.
If the punishment is LESS than the benefit t-mobile obtained, then again Net Neutrality is finished, as companies will take the small punishment for the unjust big reward.

What needs to happen is T-mobile needs to be fined AT LEAST 100x the profits it made during the throttling period, even if (and I can't stress this strongly enough), even if it means T-Mobile collapses and leaves the United States completely.

By stamping HARD on this behaviour at the first breach, it will send a very VERY strong warning to every other ISP that Net Neutrality is here to stay and attempting to breach it has extremely damaging consequences.
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ysth (profile), 12 Jan 2016 @ 2:19pm

choice by end user
I'm reading that paragraph completely differently. To me, it is saying there is a carve out for "slowing down an end user’s connection to the Internet" if chosen by the end user, but *only* if it is not content-specific. So the user choice provision simply doesn't apply.

I'm not sure how you are interpreting "In contrast" that you reach a different conclusion.
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Almost Anonymous (profile), 12 Jan 2016 @ 2:30pm

Show me the money!
I mean, the codec. If they are truly "optimizing" anything (and no, I don't believe it for a second) then the easiest way to prove it is to show us the codec being used for the transcoding.
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Almost Anonymous (profile), 12 Jan 2016 @ 2:33pm

Re: Re: Re:
Well, also if the slowing effect also did cause the provider to lower the bitrate, thereby providing a still smooth albeit lower resolution stream. What I've been reading is that the throttling is not having that desired effect.
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James Burkhardt (profile), 12 Jan 2016 @ 2:57pm

Re: Re: Re:
Im not saying tech dirt is the only one to define ti this way. It is however, distinct from the FCC's definition as codified by the rules.
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streetlight (profile), 12 Jan 2016 @ 2:58pm

What streaming providers could do
I wonder if Google, Netflix and others could show up T-Mobile by noticing that they are streaming to T-Mobile and display a popup noting something like:

"You are using T-Mobile to view our video stream and the quality of the stream is degraded to the point that your experience will be unacceptable. Since we wish you to have a great experience viewing our video we will stop the stream. Contact T-Mobile to fix the situation."

On the other hand, these streaming companies make money when one views their product they may not care about the quality of your experience. That is, unless, of course, you stop watching or cancel a paid subscription.
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Mark Wing, 12 Jan 2016 @ 3:13pm

For Net Neutrality to be dead, it had to at some point be alive, and I'm not sure that was ever the case.
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Chronno S. Trigger (profile), 12 Jan 2016 @ 3:41pm

Re: Some things I noticed
If your button was on the home page, then it is a convoluted process as it changes from user to user. I followed the instructions on the T-Mobile help site and still had to go digging to find the setting as the instructions were wrong.
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Anon01, 13 Jan 2016 @ 9:37am

Re:
$95/month! Jesus tittyfuckingchrist you can get unlimited data plans for far, far less here in the UK
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Andrew D. Todd, 13 Jan 2016 @ 4:30pm

Underlying Weakness of T-Mobile's Position.
T-Mobile does not have any subscriber loops. It only has frequencies. I think that wireless base stations are going to continue becoming smaller, cheaper, more sophisticated, more ubiquitous, and more likely to be incorporated into other products, and to operate over shorter distances, or on a line-of-sight principle. This will tend to make wireless bandwidth more abundant.

To take a couple of use-cases:

1) It is simple for an automaker to build a bigger and more efficient antennae into the roof of an automobile than anything you could carry around on your back, let alone in your pocket. A bigger antenae means the ability to reach out to more relay points, at more advantageous terms. The system would probably include satellite access as an ultimate fall-back mode. This antennae and its associated transceiver would of course create a local WiFi hotspot, which would be designed to automatically shut off when you shifted the transmission out of Park, to prevent you from collecting a Darwin Award. The service would remain available to the car's navigation computer and heads-up display.

2) The makers of commercial-grade light fixtures will begin to include WiFi gigabit "ad" units. A light fixture is, by definition, the optimal location for line-of-sight wireless. As Ed Nisley's maxim goes, "Casio never met a feature it didn't like." The light fixture will have features like spare sets of bulbs which automatically switch on when the old ones burn out. The fixture will carry a positive guarantee that you don't have to climb up to the ceiling to service it for twenty years. In that context, adding WiFi isn't a big deal. We will get to a point where it costs more _not_ to install overwhelming wireless service in some place like a shopping center food court or a fast food restaurant. A shopping center probably does have optical fiber backhaul. A fast food restauant might have slightly greater difficulty, but this would probably not be insuperable.

3) Since the cellphone companies are ceasing to bundle tablet computers with cellphone plans, Apple and Samsung are suddenly much freer to incorporate WiFi, especially in the most advanced new forms, and to make it the default communications method.

This means that T-Mobile's principal asset, local wireless frequencies, will tend to get depreciated in favor of backhaul. The automaker and the retail landlord are going to be operating in their own interests, which are not necessarily those of T-Mobile or any other telecommunications or ISP company. It might work out to something like "come to our drive-through, and you can download everything you want while you've waiting in line for your bronto-burger."

Netflix will have to adapt to the idea that there are some customers who have gigabit access for the time being, for the next few minutes, and need a download service instead of a streaming service. I do not think this will be a major adaptation.
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Gene Cavanaugh (profile), 13 Jan 2016 @ 7:19pm

T-Mobile
At one time, a very user-friendly company. Now, Project FI
is looking better, for all its faults.
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Wendy Cockcroft, 14 Jan 2016 @ 2:38am

Re: Re:
We've got actual competition here in the UK, and a much freer market where BB and mobile phone services are concerned.
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feudi (profile), 15 Jan 2016 @ 7:26am

T Mobile streaming charges
I just watched a movie last night using T Mobile wifi hotspot. Unbeknownst to me, it seems google Youtube is NOT one of the preferred streaming providers that T Mobile favors. I was never informed that there even was a preferred list. Bottom line: The Martian ended up costing me about $40 to watch! I chatted with T Mobile about this and their attitude is caveat emptor baby. Needless to say, I am canceling my T Mobile account.
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mack, 10 Feb 2016 @ 8:31am

throttling voip apps
I recently discovered one of my VoIP ios app has experience bandwidth throttling. I have been using this app for over two years and never had any network or call quality issue. I joined t-mobile business unlimited, and everything worked great first 3 months. Suddenly, when I receive a call or made a call, I cannot hear well or understand what the caller is saying, nevertheless, they could hear me well. I observed poor network quality issue warning displays on the screen, and it disappears every few seconds and returns, and that is when the call quality drops. I tried this app Jive Communication app with ATT, Sprint, Verizon, and Straight talk networks, and no call quality or poor network issues. I even went to T-mobile corporate store where the manager installed the app and tested and found exactly what I have been going through. Now, decided to leave t-mobile and also file a complain to the FCC.

I wonder if anyone has seen similar experience with t-mobile.
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Bernice, 30 Mar 2016 @ 7:25pm

T-Mobile Fraud and Liars
This company is all glitz and smiles but in reality they steal your money and turn you over to collections for bills they think you owe when you don't.

NEVER DO BUSINESS WITH T-MOBILE!
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