Content Makers Seek Protection but Waver When It Comes to Network Neutrality

WASHINGTON, October 28, 2010 – Many content makers have called upon the Federal Communications Commission to protect their ability to distribute content via the internet, yet these same content makers are reluctant to play by the same rules. Recent decisions by content makers to block some Google TV and an ESPN service show the murkiness of the debates surrounding network neutrality.

The recent blocking of Fox Broadcasting programs on the online video site Hulu for Cablevision customers has raised network neutrality questions.

After a flurry of criticism from legislators and regulators, Fox restored the service but the blocking of content has raised key questions. A number of content makers also have announced that they will block access to their content from the new Google TV device the Logitech Reveu. The device is a set-top box that integrates the web with the television-watching experience. The Reveu includes online video viewing apps along with a web browser which allows users to surf the web.

While it is clear the blocking of content by Fox was anti-consumer, it did not actually violate network neutrality principles. However, it does however raise the issue of whether content makers should be held to the same neutrality requirements as network providers.

While there is no official set of regulations or rules defining network neutrality, generally it deals with the blocking or slowing down of content or services by network operators. In this case, content maker Fox is blocking the content.

Rep. Edward Markey, D-Mass., said in a statement: “This is not only contrary to the commission’s Broadband Internet Policy Statement of 2005, which states, in part, that ‘…consumers are entitled to access the lawful internet content of their choice.’ “The tying of cable TV subscription to access to internet fare freely available to other consumers is a very serious concern. Consumers are losing their freedom to access the internet content of their choice – through no fault of their own – and this is patently anti-consumer.”

While Markey is correct in that consumers are losing their freedom to access their choice of content, the blocking by Fox does not violate the internet policy statement, which only applies to network providers and not the content makers.

Both Free Press and Public Knowledge condemned the action but did not call the action a violation of network neutrality.

FCC Commissioner Michael Copps said: “For a broadcaster to pull programming from the internet for a cable company’s subscribers, as apparently happened here, directly threatens the open internet. This was yet another instance revealing how vulnerable the internet is to discrimination and gate-keeper control absent clear rules of the road.”

George Ou of Digital Society compare the blocking of content  on Hulu to ESPN360. The ESPN service provides live video to customers of cable companies which pay extra for the service. While this may seem like an apt comparison, the ESPN service is not free. It is a paid subscription service where the ISP rather than the end user pays for the service. Hulu is free to all viewers regardless of their ISP.

ABC, CBS and NBC have announced that they will block Google TV from accessing their online video content. The new service by Google includes a web browser allowing users to surf the entire web including online video sites such as Hulu or network specific sites.

“It is truly disappointing that broadcasters would leverage their programming to deny access to viewers who watch the shows over another medium — on cable or online.  When a broadcaster exercises its market power in pursuit of maintaining a business model while stifling competition by blocking Hulu, Fox.com (or Google TV), the broadcaster violates that public trust and harms consumers,” said Public Knowledge Co-Founder Gigi Sohn.

“Google TV enables access to all the web content you already get today on your phone and PC, but it is ultimately the content owner’s choice to restrict their fans from accessing their content on the platform,” Google said.

This blocking of content is not just limited to the Google box. Last year, Hulu blocked access for Boxee, a software platform which aggregated online video. Boxee tried to come to a deal with Hulu but when Hulu was unwilling to cooperate, the firm developed a work around for the blocking by Hulu.

If content makers are asking the FCC for protection from discrimination, network providers should demand the same. With the increasing popularity of online video as a substitute for traditional cable television these blocking measures will likely increase. This could become a problem not just for online video; it is possible for popular services such as Facebook or Twitter to demand access fees from ISPs.

This practice would be allowed under the rules proposed by the FCC. Even the chairman’s Third Way proposal does not have any provisions for this type of network infringement. The proposal is fully focused on network providers and does not address content providers.

The internet thrives when users are able to connect to their choice of services via their choice of connection method. The FCC has yet to rule on the issue of network neutrality but has been given strong support by congressional leaders who have also condemned Fox for its blocking of access.