I was recently asked by another organization to take a stab at my vision of progressive principles of spectrum management. My goal is to provide a set of guiding principles that go beyond mere economic efficiency or even freedom to innovate. While I feel these are important elements of any policy, the overarching goal of spectrum management should be, in the words of the Communications Act, “to make available to all the people of the United States, without discrimination on the basis of race, color, religion, national origin or sex” the benefits of our communications system.
These are my own thoughts, and I am very curious to receive wider feedback from the Community at large. Please also keep in mind that these are a draft and represent my own best efforts and opinions. They do not represent any official position of any organization, and are certainly not the position of Media Access Project.
DRAFT PRINCIPLES OF PROGRESSIVE SPECTRUM MANAGEMENT
1) “Spectrum” is not property, a resource or any other physical thing subject to genuine scarcity. Spectrum is a useful shorthand concept for a particular activity: transmitting energy (whether intentionally or unintentionally) via the electromagnetic spectrum. Similarly, “interference” does not describe a law of nature. It describes a condition in which a receiver cannot interpret a signal the receiver operator wishes to receive and interpret, and would be able to interpret but for the presence of other electromagnetic signals. Thus, “interference” is more a product of technology than natural law, and the nature of “interference” may change as technology evolves.
2) In the 1920s, emerging radio technology reached a crisis. Because of the limits of technology at that time, only a limited number of radio transmitters could operate in the same geographic area at the same time without interfering with each other. As a consequence, Congress adopted rules prohibiting use of the electromagnetic spectrum without obtaining a license or other permission from the Federal Communications Commission.
3) Licensing represents a government restraint on the actions of all citizens. This does not, in and of itself, render licensing an evil thing. To the country, licensing frequently serves valuable social purposes. For example, we require those who hold themselves out as medical doctors to meet minimum levels of competence and comply with rules of conduct designed to protect the public. We require drug manufacturers to prove their products are safe an effective. We require anyone operating an automobile to meet certain competence standards, and we revoke that license if a person demonstrates that they are unsafe to allow on the road.
Even when the number of licenses is restricted or licenses are exclusive, this is not always because of some physical scarcity. Sometimes, authorities limit the number of licenses to assure psoitive social results. For example, many municipalities license taxi cabs and limit the number of such licenses. This ensures that taxis act as common carriers, have reasonable rates, and meet minimum standards of competence. The Federal Government grants exclusive licenses in words through copyright, in inventions and processes through patents, and in symbols through trademark. This provides incentive to artists and inventors to create, and allows consumers to properly identify goods and services with their providers.
4) Licensing spectrum, however, represent a fundamental restraint on the ability of citizens to communicate with one another. If licenses are exclusive, then citizens can only communicate with each other via a government sanctioned intermediary. If that intermediary has the right to choose how to deploy systems, or what content gets carried on the system, then communities and individuals find themselves at the mercy of government licensees. No matter what technical capacities the system may support, or what content people may prefer, or the rate at which communities would otherwise wish to see services deployed, decisions on these matters rest wholly with the licensee.
5) To some, this distinction makes no difference. For those to whom maximization of ‘desirable’ economic activity and economic efficiency (however defined) represent the only goals of public policy, the fact that a regime consisting solely of exclusive licensing imposes a restriction on individual action is irrelevant.
6) For those concerned with social justice and personal liberty, however, the difference is profound. Free citizens should not have to go on bended knee, like serfs of old, to those given exclusive spectrum franchises by the government. Decentralized control of spectrum has been advanced on economic grounds, but it derives its fundamental justification from the principles of the First Amendment.
7) Access to the electromagnetic spectrum is therefore not a question of “how much” any more than our right to free speech is a question of “how much.” No one would ask how many newspapers we should allow in a given geographic area based on market efficiencies, or if we should go beyond reasonable time and place restrictions on access to public spaces because the public has had “enough” free speech. Similarly, we should not ask “how much” non-exclusive access to spectrum we should allow citizens. Rather, we should require those demanding exclusivity to prove the need for imposing such a restriction upon the public.
8) This does not mean that economic analysis has no place in spectrum policy, or that a goal of progressive spectrum management should be the elimination of all exclusive licensing. Exclusive licensing will continue to play a roll both because of the widespread deployment of technologies dependent upon exclusivity and because critical services will require a high quality of service (QoS) and must therefore enjoy exclusivity.
9) Because technology continues to advance and evolve, progressive spectrum policy should seek to prevent the establishment of any permanent and alienable property-like right in spectrum even if ample spectrum is available on a non-exclusive basis. At the same time, progressive spectrum policy must also recognize that to gain the benefits of exclusivity, licensees will need license terms of sufficient length and flexibility to invest in infrastructure and in new technologies.
10) Where exclusivity remains, it must serve the goal of the Communications Act: providing to “all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex” a communications network and mass media that promotes diversity of views, civic discourse, technological innovation, and economic growth. While economic efficiency plays a role in this determination, it must not be the touchstone of spectrum policy.
11) Market mechanisms and market incentives can act as important engines of deployment and innovation, but they are not goals in themselves. Furthermore, where market mechanisms threaten social goals such as universal deployment or diversity of information sources, market mechanisms must yield to other forms of incentive and control.
12) Because the means of communication are a critical aspect of the infrastructure of the United States, and because maintaining a high number of genuinely diverse and antagonistic sources of news and information in the mass media plays a vital role in our democracy, spectrum policy must prohibit concentration of exclusive rights in spectrum thought safe under conventional antitrust analysis, even at the cost of some economic efficiency.
13) It would be unconscionable of the government to use its power to burden the speech rights of all citizens to confer windfalls to private parties. Allocation of exclusive rights should therefore either return direct monetary value to the United States, or otherwise serve the public interest.
14) Auctions may serve as a useful means of distributing exclusive rights, on the theory that they place exclusive rights in the hands of those who most value them and create incentives to deploy. The history of spectrum auctions, however, has demonstrated significant problems with auctions, particularly with one time “big bang” auctions designed to assign initial rights. Auctions should be carefully designed to promote distribution of exclusive rights in an equitable fashion to all segments of society, rather than to maximize revenue to the federal government. Furthermore, because these exclusive rights represent a burden on the communications rights of all citizens, it is appropriate to use these revenues to promote the broader goals of the Communications Act rather than to simply use the revenue for general purposes.
For example, revenue from spectrum auctions could be deposited into a trust fund to provide a steady stream of revenue, protected from political manipulation or corporate influence, for projects designed to promote media diversity or deployment of spectrum technologies in underserved communities.
15) For communities to achieve true empowerment, it is not enough that technologies are available to society at large. Particularly with regard to traditionally disenfranchised communities, the government has a responsibility to ensure that these communities have not only the opportunity, but the resources to take advantage of these technologies. This can be achieved through both direct subsidies, indirect subsidies such as spectrum set asides, rules requiring universal deployment, or providing incentives to private parties to serve these communities. Ideally, however, communities should be empowered to serve themselves, rather than rely on rules requiring or incenting other to serve them.
16) Because of the critical role of news and diverse perspectives to our democracy, spectrum policy cannot simply leave management of the mass media to private markets. Rather, those enjoying exclusive rights to provide broadcast services must provide meaningful service to the entire community through coverage of news and public affairs, must remain accountable to their local communities, and should foster the creation of diverse, independent, locally generated content.
17) Ownership of exclusive rights matters to both mass media outlets specifically and communications facilities generally. Spectrum management policies should therefore include means to promote ownership by members of traditionally disenfranchised communities.