Netflix is coming to Canada.  Sort of.

Canadians will be able to sign up for Netflix’s on-demand video streaming service beginning this fall, but will Canadians be interested in using the unlimited service on their usage-limited broadband accounts?

Netflix is not planning on bringing its rental-by-mail service to Canada, instead relying exclusively on streaming its library on-demand over the Internet. Netflix currently licenses streaming rights for over 17,000 titles in its 100,000 plus library.  How many of those titles with be licensed for Canadian subscribers is not yet known, nor is an exact price for the service.  Netflix will launch for English-speaking Canadians at the outset, with French to come later.  This is the first time Netflix is making its service available outside of the United States.

But many Canadians are questioning the value of Netflix in their heavily-usage-limited country.  Most Canadian ISPs have either chosen or been forced to limit subscribers’ broadband usage.  Even ISPs that want to offer unlimited service find flat rate wholesale pricing nearly impossible to get because of Bell’s stranglehold on the market.  Cable providers like Rogers have implemented their own usage limits to boost revenue and keep costs down.

For Canadians living under an average usage cap of 40-60 gigabytes per month, adding streaming video will only eat their allowance that much faster.

“Netflix and the Canadian press covering this story have ignored the reality of bit-capped Canada,” writes Stop the Cap! reader Jeffrey from Calgary.  “I would be paying $75 a month for a broadband account and be limited in how I could use the service.  The CRTC (Canada’s equivalent of the Federal Communications Commission) has been in the providers’ pockets for years and this is why high bandwidth services bypass Canada or risk failure if offered here.”

Rogers, one of Canada's biggest cable companies, also happens to own one of the largest chains of video rental stores: Rogers Plus

Jeffrey believes Canada’s largest broadband providers, including Bell, Rogers, Shaw, Telus, and Vidéotron will never allow Netflix.ca to gain the kind of foothold it has in the United States.

“These companies all own or control Canada’s cable, IPTV, and satellite TV services, all of which are threatened by an American company like Netflix,” Jeffrey notes. “They’ve already got universal usage limits on their accounts, but these guys will also run to the CRTC and Canadian government to throw up roadblocks over everything from copyright and licensing issues to Canadian content rules and the initially ignored Québécois.”

Jeffrey believes more than anything else, Internet Overcharging schemes will serve their role in keeping would-be competitors under control.

“In Canada, we already had the debate about who gets to use our pipes for free,” he says. “Thanks to the CRTC, only the providers get to use them for free.  Everyone else pays a usage tax to them which fattens their bottom lines while stunting the growth of Canadian broadband.”

In Quebec, it’s much the same story.  Asperger notes Zip.ca, a Canadian rent-by-mail service, can get him 20 new DVD releases a month for around $25.  If he signed up for Netflix, anything beyond five DVD’s a month would put him over his limit forcing him to “pay and pay, and then pay some more.”  With Canadian ISP’s increasing their penalty rates for exceeding usage allowances, the overlimit fee could easily exceed the cost of just sticking with Zip.ca’s by-mail service.

Or, for many Quebecers, the next best alternative is Bibliothèque et Archives nationales du Québec, which offers an enormous collection of DVD’s that can be checked out for free.

Canadian press accounts of Netflix’s imminent entry into Canada have largely ignored the limits Canadian Internet providers impose on their subscribers, something readily noted by readers who comment on those stories.  Canadian consumers are well aware of their usage limits, and they avoid services that could expose them to even higher broadband bills.

Those who use their Internet service heavily, unaware of overlimit fees up to $5 per gigabyte, will be educated by bill shock when their next bill arrives in the mail.  After that, no more Netflix.ca for them.

Still, Netflix.ca will probably deliver a challenge to the already-stressed Canadian video rental market where Blockbuster and Rogers Plus duke it out for a dwindling number of renters.  Price cuts have not stopped the erosion of interest in DVD rentals, and Blockbuster is mired in more than $900 million in debt, trying to avoid bankruptcy.

The Canadian Radio-television Telecommunications Commission's support of industry-promoted Internet Overcharging schemes may limit Netflix's success in Canada.

If Netflix’s streaming library, mostly of titles two or more years old, is deemed sufficient by many Canadians, it could also cause a wave of cancellations of premium movie channels and other cable services.

The Ottawa Citizen reports some analysts believe Netflix.ca will cause an earthquake in the Canadian entertainment marketplace.

Carmi Levy, an independent technology analyst based in London, Ont., believes Canadians can expect a major entertainment industry shakeup this fall.

Levy says Netflix will sound the death knell for movie-rental services such as Blockbuster and Rogers Video and will force a pricing war among traditional cable and satellite TV providers who will be forced to scramble to keep customers.

“Netflix is not some Johnny-Come-Lately to the market. Even though they are new to Canada, they have been so successful in the U.S. that only a Canadian living underneath a rock wouldn’t be aware of their brand,” Levy said. “It’s the most seismic change to the content distribution system landscape that we have seen. It forces the incumbents to change their business model.”

Levy said the arrival of Netflix will allow casual TV watchers to cut their satellite and cable TV bills in favour of Netflix’s all-you-can-eat monthly offering. He said the $9 U.S. a month charged by the company was carefully thought out and he expects to see a similar price on the service later this year.

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/CBC News Netflix Comes to Canada 7-19-10.flv[/flv]

CBC News discussed the introduction of Netflix Canada and how it will work with Netflix vice president Steve Swasey.  (5 minutes)

[flv width=”512″ height=”388″]http://www.phillipdampier.com/video/CTV News Netflix Canada 7-19-10.flv[/flv]

CTV News and its Business News Network ran four reports on the impact usage caps might have on the service, what kinds of titles will be available, and what it means for Canada’s entertainment businesses.  (12 minutes)

Lee, Massachusetts is located in broadband sparse western Massachusetts

Mark Williams is the kind of customer Time Warner Cable would normally love to have.  He wants the complete, super deluxe Time Warner triple play — cable, digital phone, and especially broadband service for his home-based business.

Time Warner wants Williams to have their service, too — but for a price.  Instead of charging the regular $35 installation fee, the cable company wants him to pay $12,000 to install his service, because, they claim, Williams’ driveway is 100 feet too long.  Time Warner says the $35 dollar installation fee is only for homes within 200 feet of the nearest utility pole.  Williams home is 300 feet away.  He doesn’t mind paying something extra to cover the additional 100 feet, but not $12,000.

The town of Lee, Berkshire County, in western Massachusetts, managed to wrangle a franchise agreement from Time Warner Cable that entitles every home and business to cable service if electric and telephone service are already available.  That’s unique for many smaller communities, who routinely have cable service available in town, but not in outlying areas.  Cable companies hate wiring rural density neighborhoods, where the costs to wire comparatively few homes takes too long to earn back from the few subscribers they can reach.

But Time Warner found themselves a loophole — a “long driveway” clause in the franchise agreement that allows them to charge more for installing service to homes set far back from the road.

Now, according to the Berkshire Eagle, Lee’s representative to the Five Town Cable Television Advisory Committee is calling out Time Warner, claiming they are misinterpreting the town’s franchise agreement and wants the Lee Board of Selectman to start imposing fines against the cable company if they don’t relent within 30 days.

Malcolm Chisholm says the real reason Time Warner wants to charge $12,000 is because Williams’ home is roughly a half-mile away from the closest Time Warner Cable subscriber, not because his driveway is too long.

“We just want to put pressure on them,” Chisholm said. “We’re just trying to get them to follow the agreement.”

Chisholm said Time Warner Cable “won’t talk to us” about Williams’ situation. The Eagle was also unable to get a response from officials at the company’s regional office in Albany, N.Y.

The newspaper decided that since Time Warner Cable wasn’t responding to its private inquiries, it would air its views on the editorial page.

If a Lee resident moved into a cave in October Mountain State Forest, Time Warner Cable might be justified in charging him $12,000 to run cable there so he watch the Red Sox on NESN and keep up with the Kardashians on VH-1. But the $12,000 the cable giant wants to charge a resident who lives near the Tyringham line is preposterous, and beyond that provides the latest evidence of the desperate need for expanded broadband service throughout the rural Berkshires.

Because Mark Williams lives roughly a half-mile away from the closest Time Warner subscriber, his installation fee escalates from the standard $35 to $12,000, which may as well be $120,000 it is so devoid of logic. Mr. Williams appears to be an eager customer too, one who wants the entire cable/Internet package Time Warner is regularly flogging.

Greed is still good at Time Warner Cable

Time Warner Cable has tried every excuse in the book to justify their continued interest in Internet Overcharging schemes directed at residential Road Runner customers.  Over a year after Stop the Cap! and its readers helped bury an experiment in overpriced broadband, the notion of doubling or tripling Internet pricing for consumers is still alive and well at the nation’s second largest cable company.

Nate Anderson of Ars Technica explored the thinking of Time Warner Cable’s executives a year later and discovered their desires for overcharging remain as strong as ever, but the excuses they give for wanting to do so have changed.

TWC’s revenues from Internet access have soared in the last few years, surging from $2.7 billion in 2006 to $4.5 billion in 2009. Customer numbers have grown, too, from 7.6 million in 2007 to 8.9 million in 2009.

But this growth doesn’t translate into higher bandwidth costs for the company; in fact, bandwidth costs have dropped. TWC spent $164 million on data contracts in 2007, but only $132 million in 2009.

What about investing in its infrastructure? That’s down too as a percentage of revenue. TWC does spend billions each year building and improving its network ($3.2 billion in 2009), but the raw number alone is meaningless; what matters is relative investment, and it has declined even as subscribers increased and revenues surged. “Total CapEx [capital expenses] as a percentage of revenues for the year [2009] was 18.1 percent versus 20.5 percent in 2008,” said the company a few months ago.

In fact, CapEx has declined for the industry as a whole. As the National Broadband Plan noted, the big ISPs invested $48 billion in their networks in 2008 and $40 billion in 2009. (About half of this money can be chalked up to broadband; the rest of the improvements were done to aid cable or phone service.)

To recap: subscribers up, revenues up, bandwidth costs down, infrastructure costs down. This might seem like a textbook case of “viability”; what were execs like Britt and Hobbs talking about last year when data caps were held up as a necessary safeguard against doom?

Before moving to Time Warner’s Excuse-O-Matic, let’s pause for a moment and reflect on the fact this company has stalled more on Internet upgrades than virtually every other major cable operator.  Even bankrupt Charter Communications has been aggressively pursuing investment in the win-win DOCSIS 3 technology that allows cable operators to sell faster tiers of service -and- reduce congestion in heavy web-surfing neighborhoods.  By effectively “bonding” several cable channels devoted to its broadband service together, the pipeline into even the most hip college neighborhoods can sustain a full-scale assault by Hulu fans streaming high bandwidth video.  Comcast realized this more than two years ago and rolled out its super-fast 50Mbps tier to a dozen cities well over a year ago.  In contrast, Time Warner Cable managed to bring forth its “wideband” offering in just a handful of communities — New York City being the largest, last year.

Internet providers always try to awe an audience with claims about the billions of dollars they invest in improved technology, while forgetting to mention they earn tens of billions in profit on those investments.  The shock and awe of stacks of money piled high on a table is tempered when you see the warehouse holding the rest of the cash standing behind it.

Broadband is becoming the single biggest revenue source for cable operators, passing digital phone and well on the way to passing cable television service.  It’s the cash cow that can be milked forever, especially with the limited number of choices most Americans have to obtain the service.

Back to Nate’s story:

Several months ago, while on a business trip to Manhattan, I entered a nondescript building near the Flatiron building and rode the elevator to the top. Inside was one of TWC’s main New York operations centers, hosting an astonishing array of cable and Internet gear. But the real showpiece was the monitoring room, a darkened room with control hardware, computers, and a wall of TVs showing every cable channel currently running out over TWC’s network.

It looked brand new and obscenely expensive. Engineers slipped in and out in silence. A huge pile of boxes on the floor held a new set of replacement TVs. When I make my career shift from ink-stained wretch to Evil Genius, this is exactly the sort of room I will build in order to plot my world domination.

“It’s not a cheap endeavor to run a network like we do,” said TWC’s tweeting VP of Public Relations, Alex Dudley, when I had spoken to him the week before. Here was an obvious reminder of what he meant.

Time Warner Cable’s version of a command and control center, wall after wall fitted for television sets — the Time Warner Cable Sports Bar — impresses only until you realize the company could have paid for it out of the petty cash box.  It’s obvious nobody was watching those televisions last spring as wide-scale protests erupted in four of the cities Time Warner Cable chose for their experimental pricing project.  If they had, they would have apologized to their customers and buried the idea then and there.

At this point, Mr. Anderson began the useless attempt to debate Mr. Dudley, whose job is to sell the agenda of Time Warner Cable (and obfuscate when necessary).  Why has Time Warner Cable’s senior management held onto its dreams of Internet Overcharging like a pit bill, refusing to let go, Anderson asked.  Because of labor costs, Dudley replied.

As Internet use increases, TWC techs, engineers, and executives need to make adjustments such as DOCSIS upgrades at the cable company headend or “node splits” that divide a shared cable loop in two when bandwidth use hits certain metrics. Paying all of these people costs money, and those costs increase as the network is more heavily used.

Last April, when Time Warner Cable was relying on its tweeters like TWCAlex to spin a tale about how their Internet Overcharging schemes would benefit customers and help pay for DOCSIS 3 upgrades (which ended up bypassing cities like Rochester, N.Y., and went to New York City instead — where no such pricing scheme was tested), Alex’s bosses were just completing a layoff of some 1,250 Time Warner Cable employees.  As Internet use was increasing, Time Warner Cable was decreasing the number of its employees from coast to coast.

If Alex is telling the truth, Time Warner Cable needs an employment fund from 8.9 million customers.  Considering many Time Warner Cable cities raised the price on Road Runner service by $5 a month this year, that’s $240 million dollars a year to get the pot started and I’m only counting four million of those subscribers.  If Time Warner Cable hired back those 1,250 former employees, they could each get $192,000 a year from that kitty.  Implement Internet Overcharging schemes that could triple consumers’ rates for an equivalent level of service and they could earn as much as CEO Glenn Britt and then some.

I’m also uncertain how often Time Warner Cable executives are shimmying up phone poles or clearing out wasp nests inside those green cabinets positioned all over town while performing service upgrades and node splits.  It’s far more likely they are spending their time dreaming up new excuses to raise cable rates.

Please deposit 25 cents for the next megabyte of usage

This latest excuse, while certainly novel, is just another bit of nonsense.

Time Warner Cable actually spent more money last year dealing with HD channel rollouts and upgrading their cable systems to support Switched Digital Video to accommodate them.  The company did not exactly slap limits on how often cable viewers can leave their sets on, nor pitted their average TV viewers against viewing piggies who watched too much.  Maybe the coin slot on top of the cable box can be tried in 2011.

In fact, as broadband equipment continues to become more reliable and scaled to manage growing demand, it’s becoming easier than ever to keep broadband lines humming at the cable company.  That leaves Time Warner in the envious position of enjoying increasing profits on service that increases in price while decreasing in cost.  In fact the only thing growing at a faster pace than the company’s broadband profits is the level of incredulity informed consumers have towards cable companies with long lists of excuses to justify rape and pillage pricing.

No matter what Time Warner Cable executives want you to believe, the FCC noted in its broadband plan that international bandwidth has grown 66 percent each of the last five years, all while the costs have dropped by 22 percent per year to handle that traffic.

Consumers do not want these Internet Overcharging schemes.  Time Warner Cable should do itself a favor and drop them, once and for all, just as they have done for their Road Runner Mobile service.  If 3G/4G wireless broadband from Time Warner comes without usage caps, why in the world should cable broadband be any different?

Comcast subscribers in cities across the country are getting as hot as the summer as they learn the cable company is jacking up prices again — for many the second time in a year.  This time, the rate hikes are blamed on the cost to deliver an expanded lineup of HD channels, increased programming costs, and new cable modems.  Yet on the eve of the European Union approving a proposed Comcast-NBC Universal merger, many Comcast cable customers are beginning to wonder if all of these rate hikes are going to pay for that deal.

Here is a sampling of press reports from across the country on the latest round of increases:

San Francisco Chronicle: Comcast Corp. said it is raising rates for California cable and Internet customers by an average of 3.8 percent starting Aug. 1. The average video customer will see their monthly bill increase by $2.49 from $60.76 to $63.25 a month. Internet service will also increase for the first time in five years from $44.72 to $46.67 a month, a $1.95 increase. Andrew Johnson, regional vice president for Comcast California, said the increase is necessary to pay for more programming choices, new features, faster Internet speeds and improvements to customer service.  The last rate increase came October 15, 2009 when rates went up just over 1 percent.

The Record (Stockton, Calif.): For the second time in less than 10 months, Comcast Corp. customers in San Joaquin County face price increases for cable television service and, for the first time in five years a boost in charges for a cable Internet connection, the company announced recently. Customers in Stockton, Manteca, Lathrop and San Joaquin County served by Comcast will see an increase of nearly 4 percent in their cable bills beginning Sept. 1. Notices began going out to subscribers late last week. Other Northern California areas served by the cable giant will see prices change Aug. 1.

“They’ve got you tied in,” said Art Hickey of Stockton, who has five television sets in his home and subscribes to the highest tier of digital service. “They tease you with those six-month deals and 12-month deals and they don’t say what it’s going to be after that. People buy into it and then they’re just stuck with it,” he said.

So why not try another source of television?

“I haven’t compared, and I don’t want to because it’s a nuisance,” Hickey said.

The Spokesman-Review (Spokane, Wash.): Most of Spokane’s Comcast subscribers will see price increases in their Internet and video services effective in August, the cable company announced. Comcast’s last price increase went into effect October 2009. According to Comcast spokesman Walter Neary, most Spokane cable television subscribers will see an average monthly increase of about $3.21, or 4.9 percent. Customers who subscribe to Limited Basic, the least expensive package of Comcast TV channels, will have no increase in their monthly bill. Limited Basic includes all over-the-air local stations and the public, education and government channels.

Customers who pay for Comcast cable Internet will see two increases – a modem rental fee that will rise to $7 from $5 per month, and a $3 hike for monthly Web service. Subscribers who bundle Internet with either Comcast voice or TV service won’t pay the $3 hike, but will still see the modem fee increase, Neary said. Subscribers can eliminate the modem fee by buying their own modem. The Internet price hike reflects increased investment by Comcast in additional security services for subscribers and technology upgrades, Neary said. Another price increase, not reflected in Comcast’s stated 4.9 percent average monthly hike, is a $2 hike in the “HD technology fee.” TV subscribers who see HD Comcast channels will pay $8 per month for that technology fee, said Neary.

York Daily Record (York, Penn.): Comcast Cable is about three weeks away from putting into effect its second price increase in less than one year. On Aug. 1, the company will boost the average York County customer’s bill by roughly 3.5 percent, said Bob Grove , a spokesman for Comcast Cable’s Keystone Region. That increase is on top of a 1.9 percent price hike for the average Comcast customer that took effect Nov.1. The current rate increase is rooted in Comcast’s company-wide digital upgrade that calls for a jump in the number of high-definition channels to climb from 50 to 100, Grove said. Also, Comcast’s on-demand video menu will increase from 18,000 choices, 4,000 of which are HD, to 20,000 selections with 5,000 of those coming in as high-definition, he said.

“We’ve continually invested in next-generation technology to support new product features, more programming choices and improvements to customer service,” according to a statement released by Comcast concerning the increase. However, for those currently enrolled in a Comcast promotion, your bill will remain unchanged until that particular deal ends, Grove said. “Nearly half of all Comcast customers are on some kind of promotion,” he said.

Public Opinion (Chambersburg, Penn.): Many Comcast customers will see an increase in their monthly bills starting next month. The average customer bill in the Chambersburg area will increase by about 3.5 percent, according to a company spokesperson. The new rates take effect Aug. 1. A customer with standard cable or digital starter service will now pay $63.50 a month, or $3.50 more. Expanded basic, digital preferred, digital premier and total premium services are also increasing by $3.50 a month. Limited basic service, digital economy and family tier services are not affected. Economy, Performance and Blast! tiers of high-speed Internet will be increasing $2 a month. Monthly prices for the Ultra and Extreme 50 tiers will not change. Digital voice services will also cost $1.95 more a month.

Centre Daily Times (State College, Penn.): Comcast this week started sending out another round of mailings notifying customers of another change. But this time around the mailing isn’t warning of an impending digital conversion, or announcing the addition of more high definition television channels. This time around, it’s a notification of a rate increase. Effective Aug. 1, the average price for Comcast in the State College area will go up about 3.5 percent.

The company cited technology and infrastructure investments when contacted for comment. “These investments make it possible to deliver continued innovations, such as more HD and On Demand choices, converged services, faster Internet speeds, multi-platform content and new services consumers want and value,” said Bob Grove, director of public relations for the Keystone region of Comcast. Grove said the recent digital conversion by the company was one of the cost factors, as well as other programs that have included increasing Internet speeds for customers in the area. He noted that bills for customers whose service operates under one of the company’s promotions will not be affected until the promotion period expires.

"Without limits" is ironic from Time Warner Cable, whose CEO still believes in Internet Overcharging schemes, even if customers don't.

Time Warner Cable has stopped promoting three different service plans for its Road Runner Mobile wireless broadband service.  The company’s new promotional literature and website now promotes just one mobile plan  — National Elite, with three different prices depending on what kind of business you do with the cable company.  It also does away with Internet Overcharging schemes, promoting an “unlimited data allowance” regardless of whether you access the service over 3G or 4G networks.  That’s ironic, because Time Warner Cable’s CEO Glenn Britt is still a big believer in consumption billing schemes and usage limits.  Should Time Warner Cable ever return with new overcharging schemes, we’ll be sure to remind them about the implications of providing unlimited wireless service while trying to restrict the much larger wired pipeline Road Runner’s cable-based network provides.

As we reported last year, when Time Warner Cable introduced Road Runner Mobile last winter in North Carolina, the company offered three different service plans for customers considering signing up:

• National Elite: Unlimited access to Clear WiMax and Sprint’s 3G EVDO Rev. A network for $79.95 per month to customers who also take the Road Runner Standard or Turbo cable modem service. Time Warner promises further discounts if customers subscribe to the cable provider’s double or triple-play cable service bundle which includes cable internet access and digital phone service.
• Mobile Elite: Unlimited access to mobile WiMax for $49.95 per month and pricing also applies when bundled with the Standard or Turbo cable modem service with an additional bundle discount available.
• Mobile 4G Choice: Caps mobile WiMax use at 2 gigabytes per month and will sell for $39.95 per month if customers add at least one other Time Warner cable service.

Now, as the company introduces the service in upstate New York, customers are getting promotions online and off for only one plan — National Elite.

Pricing appears to be standardized in most regions of the country, depending on what kinds of services you already receive from Time Warner Cable:

• Current Road Runner subscribers will pay $54.99 per month for National Elite;
• Current Time Warner Cable subscribers and those without cable or broadband service will pay up to $69.99 per month.

(Several cities in Texas can obtain special pricing promotions reducing the cost to $49.99 per month for 12 months.  Ask about special promotional pricing if you intend to sign up.)

Customers can select a plan that includes a two year service agreement with a $175 early termination fee (reduced by $7.50 for each month you remain a customer) and receive a substantial discount on a wireless modem and get the $35 activation charge waived.  Non-contract customers will have to buy their equipment at full price and pay the activation fee.  4G network speeds are up to 6 Mbps for downloads, and up to 1 Mbps for uploads. 3G network speeds are up to 1400 Kbps for downloads, and up to 500 Kbps for uploads, according to the Time Warner Cable website.

Plans directly available from Clear, which actually provides the Road Runner Mobile service are different:

• Clear On-the-Go provides 4G-only service for $40 a month.  No 3G service.
• Clear On-the-Go 3G Upgrade includes unlimited 4G service and up to 5GB of 3G usage for $55 a month.
• Get Two: Home + On-the-Go includes service for one home computer and one portable computer, with no 6Mbps download speed cap, for $55 a month (add $15 for 3G service)
• Get Two: On-the-Go includes service for two portable computers, with no download speed cap, for $65 a month (add $15 for 3G service for one computer, $30 for two)

A $35 activation fee applies to non-contract customers.  If you agree to a two-year contract, you can lease your equipment from Clear starting at around $5 per month and have the activation fee waived.

Now the fine print.

Although Clear markets its 4G service as “unlimited,” the fine print suggests they can make life difficult for customers they consider “disrupting or degrading” the service for others (underlining ours):

Excessive Utilization of Network Resources. Wireless networks have capacity limits and all customers can suffer from degraded or denied service when one or a small group of users consumes disproportionate amounts of a wireless network’s resources. Clearwire, therefore, will monitor both overall network performance and individual resource consumption to determine if any user is consuming a disproportionate amount of available resources and creating the potential to disrupt or degrade the Clearwire network or network usage by others. This process of monitoring both overall network performance and individual resource consumption is consistent with the description of the nature of the Service previously described in this AUP. Clearwire reserves the right to engage in reasonable network management to protect the overall network, including analyzing traffic patterns and preventing the distribution of viruses or other malicious code.

During periods of congestion, Clearwire uses various techniques such as reducing the data rate of individual bandwidth intensive users whose use is negatively impacting other users. This temporarily limits the amount of bandwidth available to the bandwidth intensive users until the congestion has diminished, at which point Clearwire will endeavor to lift any limits it may have imposed on bandwidth intensive users during the period of congestion. Clearwire may also consider historical usage patterns when temporarily reducing the data rate of bandwidth intensive users during periods of congestion. When feasible, upon observation of an excessive use pattern, Clearwire will attempt to contact you by telephone at the telephone number you gave to us or otherwise to alert you to your excessive use of bandwidth and to help you determine the cause. Clearwire representatives also are available to explain this AUP and to help you avoid excessive use incidents. If you are unavailable or do not respond to Clearwire’s attempt to contact you regarding excessive use, or if excessive use is ongoing or recurring and repeatedly having negative effects on other subscribers of the Service, Clearwire reserves the right to immediately restrict, suspend or terminate your Service without further notice in order to protect the network and minimize congestion caused by the excessive use. While the determination of what constitutes excessive use depends on the specific state of the network at any given time, excessive use is determined by resource consumption relative to that of a typical individual user of the Service and not by the use of any particular application.

Unlimited Use Plans.If you subscribe to a service plan that does not impose limits on the amount of data you may download or upload during a month, you should be aware that such “unlimited” plans are nevertheless subject to the provisions of this AUP. What this means is that all of the provisions described in this AUP, including those that describe how Clearwire may perform reasonable network management such as reducing the data rate of bandwidth intensive users during periods of congestion, will apply to your use of the Service. The term “unlimited” means that we will not place a limit on how much data you upload or download during a month or other particular period, however, it does not mean that we will not take steps to reduce your data rate during periods of congestion or take other actions described in this AUP when your usage is negatively impacting other subscribers to our Service.