Time Warner Cable Adds Tier-Friendly Terms to Its Contracts

[qi:004] Updated: Time Warner Cable has modified the language of its consumer subscriber agreement that is directed at legitimizing the cable company’s ability to throttle and measure a consumer’s bandwidth. The new additions to the agreement also sanction tiered pricing. After Time Warner Cable’s failed attempt to expand tiered billing trials, which created different pricing plans for consumers based on the amount of data they downloaded, the company promised it would shelve the plans while it educated consumers. It looks like that education campaign may come now that the legal bases are theoretically covered. Here’s the new language:

6. Special Provisions Regarding HSD Service

(ii) I agree that TWC or ISP may change the Maximum Throughput Rate of any tier by amending the price list or Terms of Use. My continued use of the HSD Service following such a change will constitute my acceptance of any new Maximum Throughput Rate. If the level or tier of HSD Service to which I subscribe has a specified limit on the amount of bytes that I can use in a given billing cycle, I also agree that TWC may use technical means, including but not limited to suspending or reducing the speed of my HSD Service, to ensure compliance with these limits, and that TWC or ISP may move me to a higher tier of HSD Service (which may result in higher monthly charges) or impose other charges and fees if my use exceeds these limits.

(iii) I agree that TWC may use Network Management Tools as it determines appropriate and/or that it may use technical means, including but not limited to suspending or reducing the Throughput Rate of my HSD Service, to ensure compliance with its Terms of Use and to ensure that its service operates efficiently. I further agree that TWC and ISP have the right to monitor my bandwidth usage patterns to facilitate the provision of the HSD Service and to ensure my compliance with the Terms of Use and to efficiently manage their networks and their provision of services. TWC or ISP may take such steps as each may determine appropriate in the event my usage of the HSD Service does not comply with the Terms of Use. I acknowledge that HSD Service does not include other services managed by TWC and delivered over TWC’s shared infrastructure, including Video Service and Digital Phone Service.

The language means that a subscriber can’t sign up for a contract plan hoping to avoid tiered pricing by getting in before a new tiered plan is implemented. It also specifically threatens throttling of a person’s service for violating the terms of use (hopefully it makes those terms of use a little clearer, though). It also separates out its voice and video service from the data plans, and it appears that those won’t count against any cap, and they may not be subject to throttling. Time Warner could not be reached for comment, but allowing its own products to bypass a cap would give its services an advantage over other VoIP providers and online video. That may draw the FCC’s ire. The agency earlier this year was asking Comcast whether it prioritizes its own VoIP services over competitors’ also running on the cable network. We can’t get a new FCC chief soon enough.

UPDATE: Stop the Cap, which first reported that Time Warner had modified its subscriber agreements, has updated its original story to note that there is a dispute over when Time Warner actually made the changes to its subscriber agreement. “Time Warner Cable representatives told another reporter that the language we reported on was published earlier than ‘implied’ in this article,” wrote Phillip Dampier, founder and editor-in-chief of STC, in an update published yesterday evening (we heard from the same reporter). “In their eyes, this represented ‘nothing new.'”

Exact timing aside, what is clear is that Time Warner did recently notify a subscriber in San Antonio, Texas, of a change to the subscriber agreement on that subscriber’s May bill, which is what prompted both Dampier’s story and my own. Time Warner still has not returned my repeated calls and emails seeking comment, while calls to the company’s customer services reps resulted in an array of responses, including one representative telling me that Time Warner was still practicing tiered billing in North and South Carolina and another who said that the subscriber agreement is accurate and that the company is not charging overage fees.

One way or another Time Warner still needs to address the concerns generated by the modified language. Yesterday Public Knowledge, a public interest group, called on the FCC and Congress to investigate the language included in the terms, specifically those that appear to exempt Time Warner’s own services from a bandwidth cap and any throttling. If Time Warner provides me with information as to when the changes were made, or answers any of the other questions I sent, I’ll update you.

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