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On Friday evening, I posted a story about a Albany, NY Slashdot reader who believes he is experiencing throttling of iTunes data by Time Warner Cable (TWC). About an hour or so later, Jeff Simmermon, director of communications, popped up at almost 10pm to offer his two cents, denying the possibility that his company could or would throttle:

I’m pretty sure that we’re not throttling iTunes downloads. I ask our CTO and Tech Strategy execs about stuff like this every now and again, and am always told that “we do NOT do this, under ANY circumstances.”

That said, a day earlier on Thursday, Stop the Cap published an article that details the precise legalese TWC has put in its new terms of service to justify bandwidth throttling:

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.

Does this prove that TWC is already throttling? No, but it certainly gives them legal cover to and it puts the lie to the statement the company ‘does NOT do this, under ANY circumstances’ as they’ve laid out the conditions where they believe justification exists.

Furthermore, TWC terms of service specifically exclude data used by the company’s own VOIP and video services (ie third-party VOIP and movie data counts against the cap):

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.

Can you say “anti-competitive behavior”? Skype is discriminated against. iTunes is discriminated against. Add to this list anyone that isn’t TWC—Hulu, Netflix, Vonage, BitTorrent, etc.

Of course, this high-level double-speak is reminiscent of Comcast, which repeatedly denied it throttled specific traffic, only to later admit that it had indeed done precisely that. Under the Bush FCC, the company said it would stop, though its compliance has been contested, and got off with nary a slap on the wrist.

All of this is just salt in the wound to US broadband users who already pay more for less throughput. And, according to the BBC (see their Broadband globe), that countries like Japan and the UK are installing last-mile fiber not only for urban customers, but also people in rural, farming communities with some already enjoying 40Mbps service.

Are you going to wait for “proof” that Time Warner Cable, Comcast, etc are throttling iTunes or Skype or BitTorrent or Hulu throughout or are you going to write your write your state and federal representatives, as well as the FCC to make sure they can’t?

See you at the polls…

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