Unleashing the Open Mobile Internet

Introduction

Our society increasingly relies on mobile technology while being limited to a handful of Internet service providers (ISPs). Policymakers continue to struggle with how to provide nondiscriminatory Internet access without undermining the financial incentives needed to encourage continued infrastructure development. Applications like streaming media or peer-to-peer (P2P) file sharing consume significantly more Internet resources than a traditional voice over Internet protocol (VoIP) telephone call. In response, Internet providers frequently degrade these bandwidth intensive applications to maximize profit. Many consider this practice discriminatory, believing that each user should be free to run the application of his choice on an equal basis with other users. With few exceptions, Internet users pay the same price to access the Internet regardless of which application they run. Without a mechanism to fairly price each application based on its consumption of Internet resources and value to the consumer, ISPs are incentivized to continue discriminating.

Two developments are unfolding that may provide for nondiscriminatory access while retaining the incentive for Internet infrastructure development. First, the Federal Communications Commission (FCC) has made available a significant amount of bandwidth previously reserved for analog television transmission. Second, multi-mode and cognitive radio technology have advanced to the point where it is now feasible to develop mobile devices that can work with virtually any ISP regardless of the transmission mode or frequency that the ISP supports. These devices may enable consumers to have ad-hoc open mobile Internet access to the ISP of their choosing. The resulting free market competition will provide non-discriminatory access without unduly depriving ISPs of the economic incentive required to continue providing Internet services.

This Note proposes a new FCC regulation that would require ISPs to offer ad-hoc open mobile access. Section II describes the evolution of the Telecommunications Act of 1996, which regulates most aspects of mobile Internet communications. Section III describes the conflicting goals of providing nondiscriminatory access and maintaining price tiers that incentivize Internet infrastructure development. These disparate goals are irreconcilable without a new paradigm. Sections IV and V describe recent developments that enable a new paradigm and convey the missing link as a new minimally obtrusive FCC regulation. Specifically, Section IV discusses the recent availability of radio spectrum previously reserved for analog television.

Section V describes developments in software-defined radio technology and general industry trends supporting its use in unlicensed spectrum. This technology can effectively exploit newly available spectrum in a way that could alleviate the concerns of nondiscriminatory Internet access. Recent examples of this technology will be highlighted to show that the proposed regulation is pragmatic. Section VI is an analysis of the proposed regulation with anticipated issues and defenses. Section VII concludes this note by showing that the proposed regulation is the only remaining obstacle to enabling a free market solution to mobile Internet access. This regulation will unleash the power of the open mobile Internet so that it will continue to develop with financial incentives for ISPs, nondiscriminatory access for users, and minimum regulatory burden.