The American Cable Association has issued the following caution to the FCC: 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," ACA President and CEO Matthew M. Polka said in a statement. "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, according to ACA.

"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."

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