UCLA Entertainment Law Review

Every day, new innovations move us toward a mobile, alwaysaccessible

Internet. In this time of rapid technological change, the

challenge for any new regulation of the Internet is sustainability: to

craft rules that can adapt to and withstand the constant evolution in

technology and network structure. This comment analyzes the Open

Internet Order, the latest attempt by the FCC to protect Internet neutrality

and openness, through the lens of regulatory sustainability. In

the Order, the FCC has decided to regulate "mobile" ISPs less than

their "fixed" ISP counterparts. Critics worry that this lesser regulation

of mobile Internet will create a foundation of discriminatory practices

by mobile broadband providers who could take advantage of the

lax regulation and block specific content and applications. Missing

from these critiques, however, is a clear understanding of the repercussions

on the sustainability of these regulations caused by dividing

Internet providers into separate categories.

This comment argues that in using the categories of 'fixed" and

"mobile, " the FCC continues its flawed tradition of placing communications

technologies into distinct regulatory silos that become unwieldy

when new hybrid technologies erode the differences between

those silos. We are heading towards a convergence of networks, where

wireless and fixed-line networks will combine to form one overarching

network that caters to all endpoints, stationary or moving. This convergence

of networks will result in the Order's distinctions between

"fixed" and "mobile" becoming obsolete. This comment argues that

the FCC should reject its ex-ante fixed category-based approach in the

Order and rely on a more flexible, ex-post adjudicatory system to create

sustainable regulations for the future. This comment proposes one

such solution to ensure that the Order remains sustainable.