Bright-line Rules. To avoid the considerable social costs associated with evaluating behavior case-by-case, behavior that is clearly harmful should be explicitly banned by bright-line rules. In particular:
- The no-throttling rule should explicitly ban discrimination against individual applications AND classes of applications.
- The exception for reasonable network management should require network management to be as application-agnostic as possible.
- The FCC’s rules should explicitly ban two types of zero-rating: (1) zero-rating in exchange for edge-provider payment and (2) zero-rating of selected applications within a class of similar applications without charging edge providers.
General Conduct Rule. The FCC should provide additional guidance on how it intends to evaluate practices under the proposed general conduct rule. The Open Internet Order provided an approach for how to identify a practice’s impact on innovation and free speech. The FCC should adopt a similar approach in the context of the general conduct rule.
In particular, to determine whether a practice is likely to reduce innovation and free speech, the FCC should evaluate the practice based on whether it preserves the following three factors:
- User choice;
- Application-agnosticism; and
- Low costs of application innovation and free speech.
This approach would allow complainants to show that a practice is likely to reduce innovation and free speech and should therefore be prohibited by demonstrating that it violates at least one of these three factors, without requiring them to engage in a detailed analysis of the impact of the practice on application innovation, free speech and broadband deployment.
Interconnection. The FCC should prohibit providers of last-mile Internet access services from charging interconnecting networks, application providers and content delivery networks fees for access to their subscribers and clarify that last-mile ISPs can’t use practices related to interconnection to evade the FCC’s network neutrality rules.