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ACA To FCC: Ensuring Unfettered Consumer Access To Internet Content Means Restricting Closed Internet Models Like ESPN360

As the Federal Communications Commission launched its Net Neutrality rulemaking, the American Cable Association issued the following caution: Ensuring that consumers have access to all lawful content means the FCC must stop powerful content providers from using wholesale arrangements to restrict consumer access to content. ACA cited ESPN360.com as an example where the most powerful sports programmer denies access to content, unless a consumer subscribes to a particular broadband provider.

"ACA believes that content distributors such as ESPN360 should live under the same Net Neutrality rules as broadband service providers," American Cable Association President and CEO Matthew M. Polka said. "The foremost principle of Net Neutrality is that consumers can access the legal content of their choice. ESPN360 fails that principle, and any regulation must address that."

ESPN360, owned by the Walt Disney Co., is pioneering a closed Internet business model, under which broadband service providers must pay ESPN fees based on their total number of broadband subscribers, forcing those with no interest in watching sporting events on the Internet to subsidize those who routinely want to access ESPN360's content.

"Despite having the technological know-how to provide this content directly to subscribers for a fee, ESPN has opted to block access to this Web content unless an access provider agrees to place this financial burden on all of its broadband customers," Polka said. "That is wrong, and the FCC must ensure that each consumer has the individual choice to buy or not buy ESPN360."

On Oct. 22, the FCC voted 5-0 to open a notice of proposed rulemaking regarding Net Neutrality. Comments are due Jan. 14, with replies to comments due Mar. 5. Although they expressed many doubts, the FCC's two Republicans, Robert McDowell and Meredith Attwell Baker, agreed to support FCC Chairman Julius Genachowski in the initial phase of the proceeding.

According to the FCC, the agency is proposing six Net Neutrality rules that would apply to broadband access providers, subject to reasonable network management practices that still need to be defined. The proposed rules would not apply to Google or Yahoo! or ESPN360.

Under the proposed FCC rules, a provider of broadband Internet access service:

1. Would not be allowed to prevent any of its users from sending or receiving the lawful content of the user's choice over the Internet;

2. Would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user's choice;

3. Would not be allowed to prevent any of its users from connecting to and using on its network the user's choice of lawful devices that do not harm the network;

4. Would not be allowed to deprive any of its users of the user's entitlement to competition among network providers, application providers, service providers, and content providers;

5. Would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and

6. Would be required to disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking.

ACA is urging the FCC not to overlook the importance of Content Neutrality because rules solely focused on broadband network providers would leave a gaping hole in the regulatory regime and expose consumers to an assortment of harms that would likely drive up the cost of broadband, a result totally at odds with the Obama Administration's goal of making broadband access both universal and affordable.

Polka also stressed that Net Neutrality regulations should permit ISPs to engage in reasonable network management practices and should give them the right to experiment with a range of consumer pricing models, especially consumption- and metered-billing options, which promote affordable broadband access for every American.

"Under flat-rate pricing plans, the network's heaviest users transfer their costs to light and moderate users and network upgrade costs must be recovered from all subscribers equally," Polka said. "Customers who rely on the Internet just to find a job by e-mailing resumes should not have to pay more for broadband simply because other customers are watching the latest blockbusters in HD."

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