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Net Neutrality

Net Neutrality. Priority Taxonomy. Paid arrangement for priority (e.g., not count against data cap, higher quality of service) Available to all comers on same terms Not available to all comers on same terms Different terms No terms to others (i.e., exclusive arrangement)

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Net Neutrality

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  1. Net Neutrality

  2. Priority Taxonomy • Paid arrangement for priority (e.g., not count against data cap, higher quality of service) • Available to all comers on same terms • Not available to all comers on same terms • Different terms • No terms to others (i.e., exclusive arrangement) • Non-paid arrangement for priority

  3. Regulatory Choices • No Protections • Per Se Ban/Ex Ante Prohibition • 2015 OIO for paid priority • Note 2015 OIO subjected zero rating to case by case • Rule of Reason/Ex Post Review/Case-by-Case/Complaint-Driven Process • Any paid arrangement between ISP and edge presumptively violates non-discrimination principle • 2010 OIO • Burden of proof on parties to arrangement • Any paid arrangement between an ISP and edge provider presumptively does not violate non-discrimination principle • 2014 NPRM • Burden of proof on third party edge provider

  4. Implementing 3b • Section 616 of Cable Act is the template • Independent edge provider issues a complaint to FCC, adjudicated by administrative law judge • Complainant bears burden of overturning the presumption of non-discrimination • Evidentiary criteria • Similarly situated • Disparate treatment • Harm to rival • (Questionable) Profit sacrifice for downstream division of ISP

  5. Problem with Template • Takes too long: Media Bureau acts as gatekeeper to ALJ, discovery, expert reports, depositions, hearing, post-hearing briefs, appeal to FCC, appeal to D.C. Circuit • Corrections • Discrimination ends upon finding by ALJ during appeals • Decision by ALJ/arbitration panel is binding

  6. Sweetener • Expand forum to accommodate discrimination complaints brought against dominant edge providers/intermediaries • Include in package with non-net neutrality reforms, e.g. broadband subsidy funded via Treasury rather than via tax on telecom/broadband revenues

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