Tales of the Sausage Factory

Every now and then, I take a break from the delightful and snarky world of blogging to dash off the odd researched piece for an academic journal. This is always an annoying and painstaking process, because academic journals want footnotes not just the occassional link. They also dislike articles that use terms like “incumbent whankers.”

Still, the effort (when I can find the time for it) is usually worth it — at least from my perspective. You can judge for yourself by following the link to the Commlaw Conspectus website and downloading From Third Class Citizen to First Among Equals: Rethinking the Place of Unlicensed Spectrum in the FCC Hierarchy.

For those unsure if its worth slogging through 39 pages of lawyer writing, here’s a summary. The FCC has a basic hierarchy of licensed spectrum, licensed by rule (family radio service and a few other things), and unlicensed spectrum. From a wireless perspective, the FCC exists for licensed spectrum, has a few oddball things licensed by rule, and has a few slivers of space open for unlicensed spectrum. Unlicensed spectrum is the “third class citizen,” required to shut off if it causes the least interference to licensed services while accepting any interference that comes its way. When the FCC allocates spectrum rights, it does everything possible for licensed services while looking with askance at the free-wheeling unlicensed poor relation. As a result, licensed services get choice spectrum and unlicensed services get the leavings — and that on sufferance.

In my article, I argue that the First Amendment calls for standing this on its head. Licensing of spectrum came about because old technology couldn’t handle everyone using this all at once we call this the “scarcity rationale,” because the need to license spectrum to avoid interference made licenses ‘scarce’). But because the FCC must give the approval for any new technologies, the technology to eliminate scarcity (and thus eliminate the need for exclusive licensing) will never come about. This circular reasoning offends the First Amendment. Accordingly, when the FCC considers whether to permit unlicensed uses, it should need to justify its decisions under a higher Constitutional standard than it does in other licensing cases (“intermediate scrutiny” rather than “rational basis” for all you legal types out there).

Besides, I argue, it’s also better policy.

While I hardly expect the FCC and the federal courts to read my piece and exclaim: “At last! What perfect wisdom! What fools we have been!” I do hope this helps advance the debate some. As with everyone else who publishes in a field where the debate has simmered for a few years, I argue for a “third way” between licensing and commons. Rather than eliminating exclusive licensing altogether, or proposing we split the spectrum down the middle, I propose allowing a gradual evolution in technology and until exclusive licensing will gradually wither away, with perhaps a handful of truly sensitive services still licensed exclusively.

Of course, if that happened, your cell phone bill would drop like a rock, ubiquitous wireless broadband would become too cheap to meter, and television and radio conglomerates would lose their precious monopolies on the airwaves. So don’t hold your breath.

Stay tuned . . .