Here's an issue that will probably keep the telecom lawyers growling at each other for just a decade or so. The American Cable Association has asked the Federal Communications Commission to stop Internet video content providers from charging ISPs wholesale access fees to their sites "at discriminatory rates, terms and conditions." The ACA filed their request as feedback in the agency's proceeding on its National Broadband Plan. The trade group represents about 900 small and medium sized cable/ISP operators, many serving rural areas.

"Media giants are in the early stages of becoming Internet gatekeepers by requiring broadband providers to pay for their Web-based content and services and include them as part of basic Internet access for all subscribers," an ACA press release on the issue warns. "These content providers are also preventing subscribers who are interested in the content from independently accessing it on broadband networks of providers that have refused to pay."

We don't force anybody

Although the above quote uses the plural, the ACA filing cites only one media giant that it says has actually adopted this practice: the Disney-owned sports site ESPN360.com. But indeed, when Ars went to the site, a pop-up announcement cheerfully told us that "your internet service provider offers ESPN360.com" and that it is "powered by AT&T," one of almost 60 ISPs that feature the online live sports network.

Ars contacted ESPN for a comment on the cable protest, and we got one right quick. "It's typical ACA is making unsubstantiated claims, and this is another attempt to convince the government to give it valuable programming for free," a spokesperson for the company told us. "We don't force distributors—small or large—to carry any of our products. ESPN360.com is a business that would simply not exist but for this economic model, and it offers over 3,500 live events which would mostly not otherwise be seen."

OK, so this is not going to be one of those nice, collegial debates, but let's get the gist of ACA's argument on the table. Obviously, the cable industry is no stranger to paying programmers for content. That's how they get the lion's share of their fare. But rural cable operators complain that they often have to pay higher prices for content than the larger distributors, driving up monthly fees for rural cable consumers.

That's why ACA is particularly sensitive to this emerging phenomenon. "For broadband operators, these sorts of access fees limit their ability to offer a low-cost broadband package to consumers who solely want email and other limited services," the filing charges. "Instead, these Internet providers are forced to put out a bloated and more expensive Internet package that includes high-priced content that the customer is not interested in receiving."

When we asked ACA's Ted Hearn whether he saw this looming anywhere else on the horizon, he pointed us towards Hulu thinking about going the user subscription route. But it's one thing to charge users an access fee, another to charge the ISP, potentially passing the cost on to all the ISPs subscribers whether they're interested in the content or not.

Gut issues

It's interesting to see the tables turned here, though—ISPs charging programmers with violating the spirit of net neutrality, rather than the other way around. "Immediate attention should be given to this matter by the FCC and others that support open networks, like Free Press, to prevent Web-content providers from hijacking the Internet," declared ACA's Matthew Polka in a press release.

So we asked Free Press what they thought about this issue, and they were pretty fast on the draw too. The outfit's policy director Ben Scott shot back an e-mail telling us that his "gut reaction" to ESPN360 was that "it's a terrible business model that defeats the whole idea of maximizing exposure on the Internet."

"E-commerce is built on an online marketplace where companies are free to charge for their services, and consumers are free to buy them," Scott added. "The situation changes when companies begin walling off content and selling network operators the right to distribute it."

So, should the FCC put the brakes on this business model? Given how tough it's been for some online video services to stay financially afloat, it seems a little early to bring big government guns into the picture. On the other hand, what's going to happen to ISP prices if a small army of content providers all start demanding wholesale access fees? Looks like we're in for yet another round of that exciting and never-ending game series titled Who Is Going to Pay for the Internet (and how)?