"Commercially Reasonable" is Too Subjective to Protect Internet Commerce

David Byrd : Byrd's Eye View
David Byrd
Chief Marketing Officer for ANPI

"Commercially Reasonable" is Too Subjective to Protect Internet Commerce

When Net Neutrality first came into our lexicon, I was on the side of the open Internet where there were no rules. I continued to promote the wild, wild Internet as the only way to preserve open access and innovation. However, once I became an executive with a service provider such as ANPI, I began to recognize the financial burden/risk that could be imposed upon us if we could not recoup the cost of providing Internet service and make a profit. After all, we are in the business of making profits. That is what provides jobs and funds innovation. Yet, I find myself very much opposed to FCC Chairman Tom Wheeler’s fast lane approach supported by “commercially reasonable” terms. This is a train wreck waiting to happen.

If I understand the initial reaction of the carriers to the proposed by rules, application service providers, such as Netflix, should pay more for their services to be delivered, due to higher levels of bandwidth consumption. Does this apply to all companies offering streaming services, regardless of size or adoption? If not, when does a given level require a similar agreement? Should these agreements be treated as tariffs and published so that “commercially reasonable” is open to review by all?

Wheeler defended the proposed rules. “If someone acts to divide Internet between ‘haves and have-nots,’ we will use every power to stop it. I will take no back seat to anyone that privileges some network users,” he said. “There is one Internet. Not a fast internet, not a slow internet. One Internet. It must be fast, robust and open.”

Really, once Pandora’s Box is opened, putting the many mischievous characters back into it is virtually impossible. Moreover, Wheeler seems to believe he will be in his position for the long haul. In this case, the long haul is a maximum of five years. His replacement may not see the potential for abuse, or care if it is occurring. The protections to be afforded commercial activity on the Internet should not rest on a verbal commitment from the FCC, but should be memorialized in a document. Commissioner Michael O’Reilly even blasts these rules, describing prioritization as a vital practice for service providers.

If service providers can arbitrarily prioritize services or packets, then the Internet is no longer open. Innovation and commercial activity traversing the web may be stymied without cause, and those affected will have been required to pay for unencumbered transport.

While I do not believe this is a death blow to the Internet, it is time for interested parties to provide input into the rules to attain objective oversight and commercial protections. 



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