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ESPN's ISP discrimination shakes Net neutrality hornet's nest

ESPN through its selective blocking of people from particular Internet service providers, may very well wake the sleeping giant that is Net neutrality.

Now that the FCC has delivered a smackdown to Comcast for its sketchy anti-BitTorrent activities, it's about time that some other company stepped up to the plate and breathed life into the Net neutrality debate. Surveillance State is happy to report that the Walt Disney-owned ESPN sports network, through its selective blocking of people from particular Internet service providers, may very well wake the sleeping giant that is Net neutrality.

ESPN360.com bills itself as the premier destination for streaming access to live sports events. If the sport or team you love isn't important enough to be shown on cable TV, no fear, ESPN will stream it to you online for free. Well, that is if you a subscriber to the right Internet service provider.

ESPN's warm welcome to customers of ISPs that have signed deals. ESPN360

Customers of AT&T DSL and Verizon's Fios services, along with approximately 20 more ISPs, can have free, 24-hour per day access to ESPN's exclusive sports content. Customers of Comcast, Cox, and hundreds of other ISPs, both big and small, are left out in the cold--forbidden to access content that ESPN has, via exclusive contracts, guaranteed that you cannot obtain via any other means in the U.S.

Love Italian soccer and get your Internet access through Comcast? Too bad.

After telling out-of-luck users that their ISPs haven't coughed up funds for their customers to access ESPN360, the sports network informs them that AT&T customers do have access, and helpfully provides them with a toll-free number that they can call to make the switch to that ISP. How nice of ESPN.

ESPN's message to Comcast's customers ESPN360.com

There are many reasons why an ISP would decide against paying ESPN for its premium Web content. A spokesperson for Cox Communications told a journalist back in 2006 that signing on to carry ESPN360 would require Cox to burden all of its customers with additional costs--even those who don't want the service.

Many customers in the United States still have no real choice for their ISP. For example, if you live out in rural Montana and the one cash-starved regional ISP that offers broadband Internet access hasn't agreed to ESPN's shakedown effort, you have no options.

Not surprisingly, this discriminatory policy concerns Ben Scott, policy director at Free Press, the group leading the fight against Comcast's anti-BitTorrent filtering and other foes of Net neutrality. When asked for his view, he issued the following statement:

ESPN360 raises the unsettling prospect that each ISP will someday have its own distinctive "Internet experience" that includes all kinds of exclusive content in parallel walled-gardens. That is a troubling vision for anyone that values an open media system shared by all Internet users alike.

Most interesting, I suppose, is ESPN's policy of discriminating against particular ISPs, while at the same time giving free access to any user visiting the site from a U.S. military or university Internet connection; that is, users coming in via a .edu or .mil IP address get to view the sports content without any money changing hands between ESPN and Uncle Sam.

While the decision to support the troops (via free access to European soccer) is a noble one, the decision to give college students a free ride is extremely interesting. After all, the major media companies have shown no real restraint in trying to shake down university users--at times, taking thousands of them to court for their attempts to download content for free.

The cynical among us might perhaps see this as a Joe Camel-esque tactic--offer free access when they're young, hope that they develop a habit, and once they graduate or leave the military, they'll look for an ISP that has cut a deal with ESPN.

ESPN spokesman Paul Melvin dismissed my cynicism, explaining the decision to offer free service to these millions of Americans:

These groups are not commercially served by an ISP, and they are not likely to be commercially served in the reasonably foreseeable future. Given this, there is no reasonable chance that we could strike a deal with a retail ISP, nor that the market will continue to grow and offer them greater choice. As a result we adjusted to these specific circumstances.

To try to understand how government regulators would see this issue, I turned to Rep. Rick Boucher (D-Va.), one of the most powerful members of Congress in issues related to telecommunications and Net neutrality.

[This issue has] nothing to do with network neutrality debates, which focus on the practices of the broadband providers. What is in question, is the practice of a content provider, a website owner, in terms of how it chooses to make its content available ... I don't see it as a matter for policy makers to get involved in. I see it as a matter for private contracts, to be determined by content providers.

The congressman is correct in that this is not a traditional Net neutrality conversation per se, since that term usually applies to discrimination by the company owning the "last mile"--the connection to a user's home. Perhaps a new term will need to be invented by the "Save the Internet" crowd, so as not to further dilute the "Net neutrality" phrase. However, what does concern me is the rather shameless attempt by ESPN to shake down big ISPs, while at the same time giving away its content to millions of college students for free.

Boucher added that:

If ESPN had market power, i would agree that there would be anti-trust issues. Companies that have market power have different market obligations. [However], this is one web site that is putting up sports content, competing with others. Even though ESPN is popular, I don't think [anti trust] applies. It might in TV broadcast, but certainly not on the Internet.

While I respect the congressman (and am a huge fan of his work in fighting against the dreaded Digital Millennium Copyright Act), I think he is on the wrong side of this issue. Due to the exclusive contracts that ESPN has negotiated with various sports associations, the company does have market power. If you love European soccer or another sport that can't draw enough viewers to justify TV coverage, there is simply no other (legal) way to view live sports events in the U.S. ESPN is the only game in town.

Libertarians out there will, like the congressman, argue that ESPN is a private company and has a right to decide which customers can access its content. If ESPN offered a generic service (like e-mail, horoscopes, or photo sharing), that would certainly be true. However, because ESPN has exclusive contracts for U.S. distribution of many types of sports content, I don't think these same rules apply. ESPN shouldn't be able to get exclusive access to this content, and then deny it to millions of Americans.

Yes, the content is expensive--which is why ESPN could allow the customers of non-kickback-paying ISPs to pull out their credit cards, and sign up for an individual account in order to view these games. Unfortunately, this is not something ESPN is interested in. Explaining this lack of an individual subscriber option, ESPN's Paul Melvin simply stated that "it is not the business model that we've chosen."