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Net Neutrality

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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