Although Time Warner Cable has downplayed the impact of deploying DOCSIS 3 upgrades to their broadband network outside of New York City, other cable operators making the switch are now enjoying the benefits of bragging rights, higher returns from “heavy users,” and a whole lot of happy customers.

Cablevision delighted the cutting edge crowd when it announced the launch of the fastest residential broadband service in the country — 101Mbps for $99 a month, and absolutely no cap on usage.  Now other players are maneuvering to follow their speed lead.  Broadband Reports noted this morning it had a source claiming that the nation’s largest cable operator, Comcast, was cutting prices on its 50Mbps tier by $40 a month to $99.95 for customers taking a product bundle.    The website earlier noted the company may have a 100Mbps plan in place shortly as well.  Comcast’s cap at 250GB per month does seem to apply.

Even bankrupt Charter Cable is enjoying the benefits of their super premium 60Mbps broadband service in the St. Louis area.

Heavy broadband users, as these companies have learned, often turn out to also be the “early adopters” that will readily respond to marketing for higher priced tiers of service offering higher speeds, as long as those companies don’t also bring along draconian usage caps which completely devalue the deal.  Cable operators enjoy the extra revenue they earn from these customers, retain customer loyalty, and earn praise from customers.

When Time Warner Cable proposed a 50Mbps/5Mbps service for $99 a month, we heard from several readers who were interested in the offer, right up until they learned it would come with a usage cap starting at 150GB per month, which meant customers would pay a whopping 67c per gigabyte, which represents an enormous markup.  Interest evaporated immediately.

The contrast could not be more clear — Cablevision gets industry and customer praise for offering an uncapped premium plan at twice the speed proposed by Time Warner Cable for $100 a month, while Time Warner Cable  dangled a 50/5 tier for the same price, but only after customers supported a consumption billing system and a vague, non-specific timeline for the eventual deployment of DOCSIS 3 which would make that possible.

Not every municipal broadband provider assures customers of a cap-free broadband experience.  Some of the smaller providers serving the municipalities that cable passed by constructed their own networks decades ago to meet the cable television needs of their citizens.  But because they lack the economy of scale, volume discounts the big boys get are simply not available to smaller independents.  Often the result is a system compelled to charge higher prices, because its wholesale costs are greater.  That’s the case in San Bruno, California — a city of 40,000 12 miles south of San Francisco.

San Bruno Municipal Cable TV has been the incumbent, municipally owned operator since its inception in 1971.  In the late 1960s, local government officials asked residents whether they preferred a private or municipal operator.  The majority wanted local government to provide the service, and so it did.  San Bruno was an early adopter of cable television, building a system at least a decade before many other communities across the country saw their first cable television truck.

San Bruno is surrounded by Comcast, which has made a conscious decision to avoid San Bruno, despite the fact it could apply for a franchise, and one would likely be granted.

The company introduced broadband service to its customers in 1999 after completing a system rebuild.  Historically, the company has always made usage limits a part of its acceptable use policy, and enforcement over the years has varied between throttling speeds once a limit was reached, to threats of overlimit fees as high as $10/GB.  But most customers report those kinds of fees were never actually charged.  The company sought to use the limits to scare people into compliance.

San Bruno, California

Today, San Bruno’s cable TV company has three tiers of broadband service defined by consumption levels – 50, 100, and 150GB per month.  The company defends these policies by indicating their wholesale costs are higher to obtain Internet connectivity.  San Bruno’s high speed provider has fewer than 5,000 broadband subscribers.  Despite those higher costs, the company’s current “overlimit” fee is $0.25/GB, which is much lower than TWC’s proposed $1-2/GB overlimit fee.

So what do customers think?  Online reviews are consistently negative about the quality of service, and we’ve received many complaints about the consumption-based tiering, particularly when nearby Comcast customers live under a simple “please don’t exceed 250GB with a residential account per month” policy.  But San Bruno residents enjoy a respectable 12Mbps/512Kbps level of service for $32.95 a month, $10 less than Comcast subscribers pay, as long as they avoid exceeding 50GB of usage per month.

What everyone agrees on is the need for additional competition.  Currently, AT&T offers 3Mbps DSL service in parts of San Bruno for around $40 a month.  That’s hardly comparable in speed or cost.  Comcast has refused to compete across San Bruno, so another cable provider is unlikely.  Ultimately, the deployment of AT&T U-verse, if it happens, would be the closest equivalent competitor, because it can match and exceed the municipal cable provider’s speeds.

Another compelling question — why does San Bruno Municipal Cable, serving fewer than 5,000 broadband customers, find that charging just a quarter per gigabyte in overlimit fees recoups their expenses, while the far larger TWC proposes charging considerably more — $1-2/GB?  Perhaps overlimit fees aren’t as much about cost recovery as they are about emotionally conditioning customers to ration their use out of fear of a shocking cable broadband bill with overlimit fees at the end of the month.

Back in April, Time Warner advertised a “central” e-mail address it wanted customers to use to “share ideas and views” about their gouging Cap ‘n Tier pricing scheme.  The company promised it was on a listening tour, enthusiastically promising to read, consider, and respond to customer concerns.

Over on Broadband Reports, “De” finally received a reply to input sent more than a month ago:

Well I eventually submitted an email to TWC about the caps on April 14th. To prove they pay attention to their customers, they sent me this reply today (Over a month later) LMAO:

To: RealIdeas
Subject: Greedy Bandwidth Caps. The truth!?
Sent: Tue, 14 Apr 2009 04:22:52 -0400<  >

was deleted without being read on Sun, 31 May 2009 01:49:12 -0400

Just goes to prove they don’t care if the consumer wants the per byte billing or not – it’s coming anyway.

Our opinions and views are nothing to TWC — all that matters is the $$$$. The whole PR about them listening is just to ease media and political pressure. They have made their mind up already.

Time Warner Cable CEO Glenn Britt, attending a conference sponsored by Sanford “He Who Loves Cable & Fat Profits” Bernstein, made it be known he still loves the concept of consumption based billing for the Internet, and what he sees as potentially fat profits that come from it.

“Clearly, we didn’t handle the public relations very well and had a bit of debacle to be honest,” said Britt.  “I still think the use-less-pay-less and use-more-pay-more model can work.”

At their prices?  Wasn’t one backlash enough for them?

Britt also repeated that their experiment in Beaumont, Texas, which they have apparently considered an appropriate test for the entire Time Warner Cable service area nationwide, was “successful.”

Meanwhile, investors don’t think the company performance has been all that successful.

Shares of TWC are declining after company Britt admitted that the company is seeing a continued slowdown in subscriber growth.

Perhaps their antagonistic policies and abusive behavior against their customers might be part of the reason.

Britt is convinced that 40GB per month, as delivered in Beaumont, was more than enough for the average user, and those who consume more should pay more.  Indeed, up to 300% more for the exact same level of service customers get today.

He dismissed notions that speed-based pricing is appropriate, claiming most customers find speeds meaningless.  Britt feels all the action, and the big profits, will come from turning a meter loose on customers and billing them for consumption of online video and other high bandwidth applications.

While Britt continues to claim that heavy users should bear the expense of upgrading Time Warner’s network, he also announced they would not be making any significant upgrades to that network, because what they have now is good enough for the next 10 years.

“I’m very comfortable with our plant,” he said. “I don’t see a need for a massive upgrade.”

In fact, the company is seeking ways to reduce their infrastructure spending further.  They plan to explore utilizing less powerful set top boxes to cut their costs, for example.

Time Warner Cable is finding the broadband component of their service offerings more and more important to customers as time passes.  For a growing number, it is the key component.  Leveraging that value, particularly in markets that aren’t as competitive, could bring massive new profits to the company.  Time Warner Cable acknowledges it has just two big competitors for broadband – Verizon FiOS and AT&T U-Verse.  Everyone else, wireless or copper wire DSL, just don’t have that great of an impact.  Cities that have or will have fiber or AT&T’s hybrid network, will force the company to keep service levels high and prices competitive.  In markets where those competitors don’t exist, it could become a profit free-for-all, as customers will find few, if any alternatives.

Here we go again.  Stop the Cap! reader Oscar noticed a tiny message on his most recent bill from Time Warner Cable stating the company had ‘updated’ their Subscriber Agreement.  Oh yes they did:

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.

This language, for the first time, creates the foundation for TWC to introduce usage caps, tiered usage rate plans, overlimit fees, disconnecting and/or throttling the speeds of those the company determines exceed their internal limits, and exempts their Digital Phone Service from any usage/metered billing.

The impact of this legalese is profound, because it now also closes the window for new customers to avoid Cap ‘n Tier plans by signing on to a price protection agreement.  Since the terms and conditions have now fundamentally changed, new customers must now agree to these new terms, allowing the company to force you into any metered billing scheme even if your current level of service doesn’t provide for that.  Formerly, price protection contracts would protect you from being forced into such plans until your contract expired.

It compels subscribers to retroactively agree to whatever overlimit fees the company may choose to impose.  It permits the company to suspend or reduce your speed, at their discretion, if you exceed any given cap.  It permits the company to automatically bill you for a higher tier of broadband service at their discretion, and is silent about your right to downgrade back to a lower level.

It specifically exempts their phone service from any metered billing, which now gives the company’s voice-over-IP phone service an automatic competitive advantage, because using one of their competitors may be counted against your usage allowance.

As Stop the Cap! has predicted since TWC temporarily shelved their scheme, they’d be back with more, and here is another piece of evidence to prove that contention.

(image courtesy: B Tal)

[Update: June 7 2009 — The Los Angeles Times’ Business columnist David Lazarus covered the Time Warner Cable cap issue suggesting Stop the Cap!’s reports about their contract language changes represented a “bum rap” for TWC.  Lazarus contends that the “Time Warner tips, tweets and blog posts illustrate how easily bogus information can be passed off as legitimate online — and how quickly the brush fire can spread across the electronic ether.”  He then pointed to several additional reports about the Subscriber Agreement changes and decided: “Problem was, nobody had it right.”  Lazarus then printed TWC’s position, which claims Cap ‘n Tier language has been a part of TWC’s Subscriber Agreement for “several years,” a premise he seems to accept at face value. His piece then moved into how online companies deal with “brush fires” once they get started online by quoting a “leader in corporate crisis management.”

Lazarus ignores the fact it was Time Warner Cable in San Antonio that specifically notified customers that “Your Subscriber Agreement with Time Warner Cable has been amended.  The new version is available at http://help.twcable.com/html/policies.html” Nobody here made this up.

Although he tells readers the story of the premise of our article, namely Stop the Cap! reader Oscar finding the aforementioned notification on the bottom of his May 2009 bill, he never bothers to challenge TWC’s representative about why that notice would appear on customers’ bills, and essentially dismisses the impact and scope of those changes.  If my bill had language like that on it, I’d certainly explore the “amended” Agreement.  Why tell subscribers in at least one city that a “new” Agreement is up and available for consideration they now claim isn’t new at all?

The opinion piece also edited the one line from our original report detailing what this contract language introduces for the first time.  That seems unwarranted, particularly when his piece seeks to dismiss those changes as “bogus.”

His edited version: “…warned that “for the first time” the company had laid the groundwork “to introduce usage caps, tiered usage rate plans, overlimit fees” and other customer-unfriendly moves.”

Our original: “This language, for the first time, creates the foundation for TWC to introduce usage caps, tiered usage rate plans, overlimit fees, disconnecting and/or throttling the speeds of those the company determines exceed their internal limits, and exempts their Digital Phone Service from any usage/metered billing.“

Readers can decide for themselves whether or not this kind of language has been part of past Subscriber Agreements for “several years.”  The prior one is still linked at the bottom of the page on the Oceanic division of TWC’s Around Hawaii website.  Another version prior to the transition to the centralized Road Runner website is also available for review in PDF format.

The scope of the changes in the latest TWC Subscriber Agreement is unprecedented.  No earlier Agreement I am aware of addresses all of these important issues: usage caps, tiered usage rate plans and the implications for exceeding them (including their right to move you into a new tier automatically), the specific exemption of their digital phone product from them, and throttling speeds for consumers who exceed the company’s internal limits.

Although he acknowledges our willingness to amend original stories as new information comes to light (several updates in reverse order appear below), the premise of an accompanying poll, entitled, “Is there any way to separate fact from fiction online?” is part of the traditional media’s challenge to the web they rarely impose on themselves.

My view is that honest online sites are prepared to allow updated information, even if it challenges an assertion within a piece, to be included. Nobody here has any fear or second thought about amending the record, adding the findings of others, including Lazarus’ own piece.  We trust readers to be intelligent enough, looking at the entire record, to decide for themselves who has really gotten the “bum rap.”  In our view, none of this changes the fact it will be the consumer that ultimately gets it in the end.

[Update: June 3 2009 — Alex Dudley (a/k/a our old friend, TWCAlex) told Information Week today that the Terms & Conditions on TWC’s website were last changed in “August 2008” and that customers are notified when they are changed.  I don’t recall seeing any notice last summer/fall on my TWC bill.  Another Time Warner Cable spokesperson in the same article said that “that the company’s terms are always changing and they are updated regularly.”  The confusion continues. Also, why are customers in San Antonio being notified they have been amended on a bill for May 2009?  Regardless of all of this, the real issue remains the wording and its implications.]

[Update: June 1 2009 — It’s always the policy of Stop the Cap! to bring you as much information and detail as we can find, as well as issue clarifications, corrections, and any additional details we receive, even if it might call into question one of the facts originally published in an article.  Earlier today, I began to receive word that there was a dispute regarding the exact timing of the introduction of the revised language on TWC’s website.  Time Warner Cable representatives told another reporter that the language we reported on was published earlier than “implied” in this article.  In their eyes, this represented “nothing new.”  Our emphasis has always been about the language itself, and it certainly was new to our readers.  The timing issue, while not unimportant, was not the primary focus of this article.  What was the focus?  More evidence the company is marching full speed ahead to consumption based billing, and have made sure to lay the legal groundwork to implement it.

To help readers understand how this piece was assembled, I am going to walk you through the “process,” as well as bring you the latest information, including TWC’s positions, so you may have a clearer picture and draw your own conclusions.

Stop the Cap! Reader Oscar finds this notification that his Subscriber Agreement had been amended on his latest bill. (Click to enlarge)

The original idea for this article came from our reader Oscar in San Antonio who was prompted to visit TWC’s website because of a message printed on his May 2009 bill:

Your Subscriber Agreement with Time Warner Cable has been amended.  The new version is available at http://help.twcable.com/html/policies.html

To our readers, the new language which we reprinted above, was hardly a shocking surprise. The old language it replaces is still online. Our position has always been that TWC has a very clear agenda, which they have been public about, to “educate” customers about usage and move back towards a consumption billing system.  It’s something CEO Glenn Britt vocalized just last week in his preference for this kind of billing.

Our focus, therefore, was on the language of the Subscriber Agreement.  Our assumption has never been that this was introduced just a week ago on the website.  The lead time alone for a revision announcement to appear on a bill precludes that.  Our assertion was that TWC changed the Agreement, and Oscar was among the first to notice the changes and report them.

After our report, several other blogs and websites picked up this story.  Some of them emphasized the timing of the changes, not the wording of the changes.  That planted the seeds for a side dispute about the exact date these revisions went online.  It has been a matter of debate apparently within the company as well, because there were three different contentions shared with me today:

• “the changes were made ‘months ago’ and there is nothing new here”;
• “the changes were made awhile ago at an undetermined time;”
• the changes were made and here is why…

When we called TWC about the Subscriber Agreement for our area, we were told what was online was written by the national corporate office and accurate after the termination of the “experiment.”  Earlier today, Chloe Albanesius writing for AppScout got a confirmation the Subscriber Agreement was changed as well, and why:

Time Warner said the update was simply a means of keeping its customers in the loop.

“Time Warner Cable believes that our terms of service should be a document that allows a customer to decide whether or not they’d like to purchase our service based on full disclosure of the techniques we are or may use to manage our network and improve service,” the company said in a statement. “In a dynamic and constantly changing business like high speed internet access, we believe that, while we are not legally obligated to provide such detailed terms before we implement a new technique or product structure, it is the best way to ensure that customers have all of the facts before they purchase the product.”

Do those facts include consumption-based billing in the future? “We have announced no change to our plans surrounding consumption based billing at this time,” the company said.

Bottom line, there is an open question about the exact date the changes were made, but not about the substance of those changes and their implications.  TWC doesn’t time stamp their Subscriber Agreement revisions either.  Although the latest developments today illustrate we have some room for improvement in trying to tie down these side issues with more clarity, we stand by our report regarding the language itself, its implications for metered billing, competition, and net neutrality issues.]