Responding to the outcry over its proposed regimen of price-gouging bandwidth caps, Time Warner Cable says that it's anxious to explain its intentions to the public. "We appreciate the feedback we've received," Time Warner Chief Operating Officer Landel Hobbs wrote in a blog entry last week. "We'll look forward to more dialogue as we progress in these trials." Hobbs is referring to test market tryouts that could leave consumers paying access rates of six dollars a month per gigabyte of data. In fact, TWC is laying out a "lower priced option" that would have "lighter Internet users" forking over 15 bucks a billing period for a single gig.

But apparently the company doesn't want said dialogue to go too far, telling the Federal Communications Commission that the agency should watch its words as it advises the government on how to spend the recovery plan's broadband stimulus money.

"Now is not the time, nor is this the appropriate proceeding, to engage in a debate about the need for net neutrality obligations," two TWC lawyers warned the FCC on Monday. The discussion should stay strictly focused on broadband deployment, the company insists. "Debates in this proceeding about new net neutrality regulations would only divert attention from these important goals, delaying the distribution of funds while generating considerable contention when the Commission should instead be fostering a spirit of collaboration."

Golly gosh, an observer might wonder, when exactly would be the right time to have a discussion over at the FCC about bandwidth cap plans that potentially ding consumers for accessing non-cable provider video content?

Robust or bust

But TWC may be technically correct, at least proceeding-wise. As Ars reported on Monday, the company has filed in a docket that has gotten far less publicity than the agency's call for comments on its National Broadband Plan. At the start of this month, the agency released a Notice of Inquiry asking for comment on the FCC's "consultative role," through which it advises several other departments on how to roll out the 7.2 billion in broadband stimulus money contained in the American Recovery and Reinvestment Act of 2009.

Specifically, the FCC must help the National Telecommunications Information Agency define three key terms: "broadband," "unserved," and "underserved" areas. It must also help outline "the non-discrimination obligations that will be contractual conditions" for those NTIA grants.

And here's where Time Warner is ordering the FCC to mind its wording. Besides, the company assures the Commission, "robust competition in the broadband marketplace ensures that service providers will act in consumers’ best interests. In particular, broadband providers must adopt reasonable pricing practices and traffic management policies or consumers will defect to a competitor that better meets their needs." That's assuming, of course, that there's a competitor in the area who isn't considering bandwidth caps as well.

So how should the FCC define "non-discrimination," you might wonder? Well, the cable companies and big telcos are in a tricky legal/statutory position around this question. Most of them probably don't like the FCC's August 5, 2005 Internet Policy Statement (or "broadband policy statement," as it's also called). The document says, among other things, that the Commission "has a duty to preserve and promote the vibrant and open character of the Internet as the telecommunications marketplace enters the broadband age."

And one of them, Comcast, definitely thinks that the agency was way out of line to invoke this statement when sanctioning the company for P2P throttling last year, and has filed legal papers against the FCC in federal court. Expect arguments that the Commission never really properly established the declaration as a set of rules when the trial starts.

Now we're stuck with it

But the American Recovery and Reinvestment Act of 2009 has hard-wired the FCC's pronouncement into law, at least when it comes to stimulus grantees. The legislation requires of grant recipients "at a minimum, adherence to the principles contained in the Commission’s broadband policy statement." Plus the government must publish, in consultation with the Commission, "the non-discrimination and network interconnection obligations that shall be contractual conditions of grants awarded."

So many of the big industry groups that have filed in this proceeding, like the National Cable and Telecommunications Association, have conceded that the FCC should define "non-discrimination" in this instance as "adherence to the principles contained in the FCC's August 2005 Broadband Policy Statement." But the agency should go no further, they urge. "Imposing new and untested nondiscrimination or interconnection requirements as a condition of stimulus funding risks injecting contentiousness, uncertainty, and delay into a process that should focus on creating new jobs and new broadband connections as quickly as possible," NCTA added in a filing submitted on Monday.

TWC is definitely on board with this stance. There is a dialed up tone to the company's comments, however, that sets it apart from the crowd. "The Commission should be especially loathe to recommend the application of net neutrality regulations in connection with programs that are intended to spur additional investment," the company warns.

But with the FCC's National Broadband Plan NOI asking how "the Commission should evaluate the term 'access' with certain basic consumer expectations in mind," and with a member of Congress calling for a law whacking bandwidth caps outright, it seems like this aspect of the net neutrality debate may be about to open a new chapter, and not just over the blogosphere.