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