On the one hand, a source-based nondiscrimination rule should be able to tolerate a fair bit of protocol diversity, and wouldn't be triggered by deviation from the end-to-end rule. A carrier could use different protocols for different applications, just couldn't use different protocols (or different implementations) based on who was running a particular application. Of course, that's not what the FCC has proposed. Nevertheless, even the FCC's applications-based nondiscrimination rule could tolerate protocol diversity so long as the process is sensitive to the technical advantages of different protocols. Analytically, the rule of reason like that sketched in the speech (and my earlier post) has no trouble with it.
The other hand, then, is the inevitable institutional problems. What sorts of process will the FCC employ to decide particular cases? The process in the Comcast matter was not, shall we say, a model of deep technical inquiry. Will the FCC be able to establish a process not influenced by company lobbying for an advantage that could come by getting some protocols ruled in and others ruled out? Some of the suggestions for FCC Reform do seem to be taking root at the agency, but the commitment to adjudication under ALJs with technical experts would require a big change from anything the agency has done to date. I share Phil Weiser's view that self-regulatory strategies can operate effectively when backstopped (lightly) by an agency.
In all events, I did not take from the speech an exclusion of protocol diversity but rather an argument that the FCC wants to supervise it to determine pro- and anticompetitive implementations. Over the years, my problem with this has been that the need for such supervision did not seem great enough (because generally carriers have incentives towards openness) to justify the inevitable regulatory costs. But, if that balance were different, a set of sensitive institutions should be able to apply the standards to cases.
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