CRITERIA FOR EVALUATING NON-DISCRIMINATION RULES A non-discrimination rule should meet the following criteria

It should protect the factors that have fostered application innovation in the past to ensure that the Internet can continue to serve as an engine of innovation and economic growth in the future. 1 It should protect the factors that have allowed the Internet to improve democratic discourse and to provide a decentralized environment for social and cultural interaction in which anyone can participate. 2 It should not constrain the evolution of the network more than is necessary to reach the goals of network neutrality regulation. It should make it easy to determine which behavior is and is not allowed to provide much-needed certainty for industry participants. It should keep the costs of regulation low. WHAT THE NON-DISCRIMINATION RULE SHOULD NOT LOOK LIKE I sometimes hear proposals for a non-discrimination rule that would ban discrimination that is anticompetitive and harms users. Such a rule may define certain behaviors as presumptively allowed or not allowed under these rules (e.g. user-controlled prioritization presumptively o.k.; application provider-paid prioritization presumptively not o.k.). Whether these conditions (anticompetitive, harm to users) are met and whether the presumptions should not apply to the behavior under consideration would be decided by the FCC in case-by-case adjudication. 1 These factors are described in detail in van Schewick (2010a). For a short overview, see van Schewick (2010c).