Is ESPN committing reverse Net neutrality?

A little more than a week ago I had a Net neutrality debate with Russell Shaw.  Russell Shaw speculated that there had to be some sort of Net neutrality violation going on and that the ISPs were locking ESPN out without some sort of special contract.  In Russell's blog, he speculates:

"My guess is that ESPN360 and Comcast did not come to a licensing agreement. It was ESPN360 that refused to pony up."

But as I dug a little deeper and discussed the issue with some fellow bloggers Matt S and Richard Bennett and looked around on ESPN360, I came to a startling thought:  Could this be a case of reverse Net neutrality service blocking?  If this is the case then Russell might be right about a neutrality violation, but he may have gotten the role of the perpetrator and victim backwards.

The more questions I asked, the more it seemed like this was a case of ESPN doing business as usual with Cable TV operators, only this time it seems they may have extended the concept to the Internet Service Providers (some of which are also Cable TV operators).  ESPN being an extremely popular channel is in a position to be a tough negotiator in extracting revenue from Cable TV operators which get passed on to all cable subscribers regardless of whether they watch ESPN or not.  Is it possible that ESPN is extending this exact same negotiation tactic to the Internet?

I went surfing on ESPN360.com and I was directed to a popup window titled "SORRY, YOUR INTERNET SERVICE PROVIDER DOES NOT CARRY ESPN360 VIDEOS" which then informed me:

"Good news for Sports Video Deficiency sufferers!
Although your current Internet provider doesn't carry ESPN360, from June 26 - July 19, everyone will have access to all of the sports video clips, games, live events and original ESPN shows exclusive to ESPN360 users. For now, click on the button, 'I Want ESPN360' and fill out the form to send a note to your Internet provider asking for permanent free use of ESPN360 and take a stand against sports video deficiency!
All-access period June 26th - July 19."

Now wait just a minute; I am a video deficient sufferer on every day of the year except for June 26th - July 19th?  Who gave me a reprieve from my wretched video deficiency in those three weeks?  Why does this seem so familiar?  Come to think of it, I've had these kinds of free premium TV channel trials on my Cable TV service.  After I click on the "I want ESPN360" button, I get this nice convenient form to nag my ISP that I want them to carry ESPN360.

This second form shows you a list of partners that do "carry ESPN360" (sounds a lot like Cable TV terminology).

So this is very interesting.  In order for this to be a case of Net neutrality abuse where ISPs block or degrade websites, I would have to believe the following:

• I would have to believe that there was some massive conspiracy between some of the biggest Cable and DSL broadband operators in the Country to block ESPN360 videos.
• I would have to believe that the ISPs have somehow managed to only block the premium content from ESPN360 but just so happens to allow the free samplers from EPSN360.  This would require that the network understands what's going on at the web application layer to know what's a sampler and what's a premium service to block.
• Then almost like magic on June 26th, all the ISPs that don't "carry" ESPN360 would all simultaneously unblock ESPN360 for the exact duration of a few weeks.
• I would also need to believe that the FCC would do nothing to intervene in such a massive conspiracy when the FCC had already slapped down Madison River Communications for blocking Vonage and fined Madison $15,000.

While I couldn't say for sure, I would have to bet that this is most likely NOT a case of a Net neutrality violation, but just the opposite situation where ESPN360 is treating the Internet like Cable TV where we get little choice in channels since they're all pre-packaged.  More than likely, it's a case of ESPN looking at your source IP address.  If ESPN sees you coming from an IP address starting with 24, then it knows you're coming from Comcast and it can tell you that you are "video deficient".

So what does all of this mean?  Is it possible that ESPN is making certain demands of the ISPs to be able to "carry" ESPN360 as if they were cable companies?  Does this mean that ESPN is demanding preferential treatment and free connectivity to the ISPs that aren't ESPN360 carriers?  Does this mean ESPN360 is demanding free caching services from the ISPs since that is the only scalable way to effectively deliver high-quality video on demand?  And most importantly, is ESPN demanding a fee per subscriber from the ISP?  If any of this is true, those of us who don't watch ESPN will be forced in to subsidizing this sort of activity.

Now if ESPN can demand money from ISPs for the privilege of being able to "carry" ESPN360, then why couldn't Google video demand similar privileges and payment from ISPs since it would be suicidal for any ISP to not be able to "carry" Google or Google Video?  Google certainly is in a much better position to bully any ISP than the other way around.  Technically speaking, it would be very easy for a content provider to cut off any IP range they want and effectively block all ISPs that won't share their subscription revenues.

The Net neutrality advocates worry so much about the content transporters that they have never considered the possibility of "evil" content producers.  While I don't know the exact business model behind this ESPN360 deal, it certainly looks like ESPN is blocking entire blocks of IP addresses that correspond to non-paying ISPs.  If this is true, doesn't this turn the entire Net neutrality debate on its head since we may need to reverse our focus towards the abusive content companies?  If the Net neutrality proponents can get so worked up about non-existent and fabricated cases of abuse on the part of the ISP, would they get as passionate about the real possibility of reverse Net neutrality?

[Update: Fellow blogger Justin James followed up on this issue]