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

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.

(Credit: 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

(Credit: 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."

[john55440]

In this part of a Minneapolis suburb, Comcast has a monopoly on high-speed Internet service. I can't get high-speed Internet service from Qwest, either DSL or fiber.

[gggg sssss]

If ESPN let the rest just pay for the content then there woudl be no issue would there? Everybody wins.

I think the "Shakedown" phrase is misused. ESPN says "we have this content, this is what we charge, do you want it?" That would be called doing business - and ESPN has the right to use whatever business model they choose. For once, I agree with the Democrat Representative from Virginia! It's not a right to receive ESPNs content, it is a privilege, so far Cox and Comcast have not chosen to share in this privilege. And, I don't really think this has anything to do with discrimination or net neutrality, it's kind of a non-story.

[gsmiller88]

Well no big surprise here, but my locally owned ISP isn't supported.

Ask me how much I care...

I don't.

[lberns1]

You will when your ISP finally buckles and raises your rates to cover the cost.

I subscribe to Setanta Sports, Aussie Sport TV, and MediaZone. That is how the business model should work. The author is right on about licensing. I have no access to broadband coverage of the upcoming Rugby League World Cup because ESPN360 has secured them. They have a market share. And it could easily push the above services, which are all stellar and cut rate, out of the way. Who wants to pay for coverage when it could be 'free' on someone else's dime?

My solution is to try and educate sporting organizations about ESPN360's underhanded business practices, and try to point them towards more reasonable, and fair broadband broadcast outlets. And not only should we go after them but ESPN sponsors.

I'm not a big fan of Comcast, but I'm with them on this issue. ESPN360 is playing dirty pool

[lberns1]

Oops! I didn't mean cut-rate. I meant cutting edge technologically. Setanta Sports, Aussie Sport TV, and MediaZone are fantastic services. I would recommend them to anyone interested in international sports

[HighwayHome]

"and helpfully provides them with a toll-free number that they can call to make the switch to that ISP. How nice of ESPN."

I wonder what their cut is for every customer which they flip.

HighwayHome,

You do realize we live in a capitalist nation, a democratic republic, right? You understand business is in the business of making money, and by them making money, we all benefit with new technology, jobs, cars, homes... If you don't like the fact that an ISP is providing content and making money at the same time, subscribe to another ISP that doesn't provide as good a service for less, it's your dollar...

[Moozle]

Recently my ISP - Time-Warner/Roadrunner - decided to drop UseNet support. Luckily I work for UCSD and the Academic Computing Services provides a small Cisco Client VPN to allow access from the University server. This has allowed me to continue using the NewsGroups at home. As a test, I tried to access ESPN360.com both with and without the VPN connection.

Lo, and behold! The VPN gives me access but TimeWarner does not. Interesting ... Not that I really care anything about sports on the internet.

[revcbh]

This is not a net neutrality issue, this is a copyright issue. The problem is that ESPN has both an exclusive license on content and does not wish to make it available as some would like.

To see that this is not at all an issue of net neutrality, imagine that instead of blocking access from certain ISPs, ESPN decided to issue password protected accounts to the subscribers of its partner ISPs. The same set of people would be able to access the service as now*. Then suppose that, instead of ISPs, ESPN had partner grocery stores. So, if I shop at Safeway I get access to free sports content online, when I sign up for a membership card, whereas if I shop at Giant Eagle I don't. This scenario has the same accessibility problem as the original in that not all grocery stores are available in all locations.

To take the argument to a logical extreme: ESPN could simply sit on its rights and not allow anyone to ever see the content. Obviously, no network issues of any kind would be involved in such a scenario, but the original grievance would not have been addressed. Therefore, this is not an NN issue, and the only way to repair the perceived damage to society at large would be to modify the current (absurd) copyright environment.

*Obviously, in the case that people had password protected accounts, they could share them with friends. However, someone with access today could rip the stream of whatever content they wanted to share. While stream ripping is slightly more technically involved than sharing passwords, both approaches circumvent the terms of use set forth by ESPN. Such terms can only be established and enforced via copyright law.

[caringman]

Hi! How are you? Me fine. I completely agree with you Chris, those who do not agree are kind of confuse or live in a make belief world and out of touch with reality, it has been along time I pulled the plug with ESPN, which has become a very bad company and Media Outlet, it is not a Sports Station anymore, it is a Movie and Soap Opera, to give free content to those Spoil University Students who drive almost new cars and have all those gadgets and have their Parents credit card, just like Commercials are showing the Parents what to do and those student s who has no accountability whatsoever, way to go ESPN you just created another generations of Spoil and anti-Human Individuals and more Materialists who do not care for the poor and Humanity but only for their selfish needs and wants. FOr the Military, thye are protecting us very much and thye are oing a stupendous job and they are not Spoil and think about those things, I have no problem there, FOX is doing the same thing and many other media outlet for the Military and they are part of the Government, so it is normal they have those things for free, most of the Military Soldiers do not have Personal Computers, they are on a network, so it is easier to give free content or to include it in some packages to big Organization like that, but to Students no way and no way and no way. When I went to Universities 22 years ago I did not even have a phone in my apartment and cable TV I had to use those bunny ears antenna and going to phone my Paretns in a pay phone outside in a middle of nowhere and in Winter Cold and I did not have any Calling Cards also and Ceel phone did not even exist back them it was just starting with the Analog ones my Parents did not have one and still do not have one and the only thing I had is a very old car burning about 12 can of Quaker State Oil every two weeks and the red lights going on to go see my Parents sometime on a trip usually
taking about three hours took me about six, I had to stop every 50 miles for the car to cool of, I am not exaggerating here. I had to walks sometime and it was not easy and I just barely survive with almost Dog Food, so now with all those miseries and failures in life an rejections, I am on Disability and my nervous system is kaput, because I worked so hard to succeed that I am burn out. Never finish in anything in University, becaus eI do nto fti the mold they wanted and besides I fell ill, because it was very hard on the Health to starve and to struggle like that and my Paretns were trying to help me, but they were not rich also and even in the Middle Class back then. So You all University Students you are all Spoil, you are supplicating a bit an you have, which in my era, it was not the case for more of the Students back them those who had Commodore Computers we could count them with the Hand Fingers. Now I have a Computer thanks to my Parents who thought would be good for me to have a Pass time, and now I am helping a lot of people with some Searches in the Medical Field or Planning their Trip or helping people with their Computer Problems which I learned all of this by myself.
Thank you for reading and hearing me. Take good care and stay safe all and really do care and God be with you and God give you all a lot of Love and Health and Purity and Humanity and not Lusts and Courage and Salvation and Strength.

[caringman]

I might add that I am anti-alcohol and anti drugs and anti pornography and anti adultery and anti-taverns and anti-gambling and anti video games, I am adding this, because I did not spent my little money I had back them on all those very Satanic Vices and Candies. I never go or went to a liquor store in my life and not planning to. All those antis are all to their utmost.

[rjcman38]

Imagine that ESPN caters to Universities by "giving away " content that other users must pay for by using providers that pay ESPN. Really, shocking that a TV entity that makes billions of dollars off of inter-collegiate athletics annually would give bonus coverage to their biggest customer.

I am so pissed that my phone bill, cable bill, and internet bill are not consolidated into one bill. Let me explain my point:
I. IPOD TOUCH
A. get internet package with a microphone
1. get skype free phone service to other skype users and 25 dollars a year to call numbers
B. get tv service through broadband service that carries cable stations
2. order ESPN 360 and get all sports

Right now I pay 35 dollars a month for high speed internet, 75 dollars a month for cell phone use and 100 dollars a month for cable, Verizon Fios not available, and 40 dollars a year for a skype 10 digit number. Roughly, I spend 207 dollars a month for these services and that is legalized robbery! If I had the ability to own the I phone without the subscribing to the phone service then it would cost me 30 dollars for a internet card, skype is free but number would cost 40 dollars a year and I would be able to save more money and not be bogged down by forced bills.

Lets review: I phone $400 divided by 2 years= 200 dollars a year, $40 a year for skype and $360 a year for internet service. Total cost for one year is $600 a year for all three services.
Currently I pay roughly, $2484.00 annually

That is a difference of 1800 dollars a year, that is a family vacation or medical insurance, how are these companies allowed to collude against the consumers to bog these technologies up in litigation. I am going to file a law suit in the Rocket Docket in Alexandria US Court against these companies that are robbing me blind and no one is protecting us and that is the tragedy of the US economy. No wonder we can not save money as a nation, this global corporate system that we have drafted over the last 40 years is what is killing the middle class. Every thing we as consumers own is disproportionately on credit, that is backed by a currency built on "faith" and so no one is accountable except the consumer who has few protections in times of economic crisis. "SPECIAL"