an unanticipated consequence of
Jack M. Balkin
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Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
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Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
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K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The last week’s spectrum decisions at the FCC and at Congress will probably have as much or more impact on information flow than last month’s SOPA/PIPA drama. Interestingly, these decisions also have very much to do with the delineation of property rights and the public domain.
Here’s what happened. First, on Valentine’s Day, the FCC pulled the plug on LightSquared – an eagerly anticipated new entrant into the broadband wireless space. LightSquared planned to provide broadband wireless service using long-idle satellite and terrestrial spectrum. It would have provided much-needed competition and service to rural areas. The problem was that its service, even after much tinkering, would have interfered with GPS receivers. GPS receivers are not engineered to be very noise-resistant. They never had to be. That’s part of what makes them cheap and ubiquitous. And GPS transmitters have never been all that good at keeping their signals within their assigned bands. They never had to because no one was bothered by their operations. So the result is that lots of GPS receivers pick up GPS signals outside of the assigned GPS bands, and they are easily overloaded by unwanted signals. LightSquared, even if operating entirely within its authorized levels, probably would have disrupted these receivers. That’s what the Commerce Department’s NTIA concluded. Since some of the receivers belong to military and lots of others are distributed among the consumers of different services, interference would be bad and logistically (if not technically) hard to mitigate. More about this in a minute. The second decision concerns the FCC’s authority to auction off broadcast channels for broadband wireless – auctions which are thought necessary to avoid severely clipping the flow of wireless data. After years of wrangling, on Feb. 16, Congress gave the FCC the authority to conduct two-sided auctions. What this means is that the FCC can conduct one “reverse auction” to determine the price broadcasters will demand as an “incentive” to give up their channels (in many cases, by combining operations on one channel and in some cases by ceasing broadcasting entirely). Then the FCC can conduct a second auction to deliver the spectrum into the hands of wireless carriers, sharing the revenue with the broadcasters. These provisions were passed as the ‘‘Jumpstarting Opportunity with Broadband Spectrum Act” (yes, it had to be) and occupy about 30 pages of the Middle Class Tax Relief and Job Creation Act. The auctions are expected to be conducted in a few years, but the rulemaking process to structure them will begin right away.
The broadcast channels are often referred to as “beachfront property” because of their propagation characteristics. They carry signals far, through concrete, over buildings in a single bound, etc… Everyone wants to use them. Verizon and ATT. Incumbent broadcasters. Public interest groups like Free Press and Public Knowledge have long advocated that a portion of the spectrum should be made available for unlicensed use – such as next generation WiFi – in order to promote new experimental technologies and unmetered access. Others, like me, have pointed out that 20% of the broadcast spectrum is in the hands of noncommercial broadcasters. A spectrum auction may mean that incumbent public broadcasters get a cash windfall while the public service they provided evaporates. We argued that there should be some kind of public interest set aside in the digital world, maybe in the form of spectrum infrastructure (e.g., unlicensed) or cash investment in digital noncommercial networks.
The Republicans in Congress came close to forbidding the FCC from allocating any of the spectrum for unlicensed use, but ultimately relented in a deal that allows the FCC to make “guardband” spectrum available for unlicensed use -- sort of like the fringe of the field that would ordinarily be left as a buffer between crops. This is a provisional win for public interest and unlicensed advocates, but everyone knows that it all depends on FCC implementation.
Whatever one might think of how public interest obligations were met the broadcast world, the fact is that broadcast use of the airwaves was “invested with the public interest.” Broadcasters have been saddled, to greater and lesser degrees over the years, with obligations to serve the public’s information needs. As the broadcast spectrum moves out of a regulated space and into the hands of a largely unregulated industry – wireless broadband -- there is a looming spectrum policy question of how to define the public interest and what it requires in terms of infrastructure and access.
So, what’s the relationship of these two decisions and property rights? You might say that the LightSquared situation was the failure to exhaustively define property rights. GPS operators, like almost all spectrum users, were told how much energy they could emit. But they were not told how much noise they’d have to reject. We can think of the GPS operator as the horse who is allowed to use the entire road. Along comes the car. The car interferes with the horse because the horse is more sensitive. If the rule is that the car cannot cause interference to the horse, even if the horse is very sensitive, then the car can’t enter the road. If the rule instead is that the horse will have to be able to operate even amid a certain level of disturbance, then the horse’s owner will take what mitigation efforts are required. Of course it’s all a bit more complicated with spectrum, but some very thoughtful theorists, like Pierre DeVries, have strongly advocated that receiver standards play a part in delineating spectrum rights.
The FCC will have to figure out how to define the spectrum rights of any new entrant hoping to snap up the broadcast spectrum. How exhaustively it defines these rights, and whether they include receiver immunities, could determine whether or not we’ll have another GPS – LightSquared problem down the road. I and others have argued that the FCC ought to allow more interference and set up a post-hoc dispute resolution system to deal with the resulting disputes. If you try to protect the horses from the cars and the cars from each other, never allowing harmful interference, you have a lot of wasted road.
At the same time, the FCC will be presented with the question of whether to carve out public parks or easements or whatever you want to call them from the private property that it creates when it auctions the public airwaves. What will be the scope of the public domain in spectrum? Will unlicensed spectrum be the sum total of public domain? What happens to noncommercial television channels and the value and values that they instantiate? Stay tuned.
Ellen Goodman is Professor of Law at Rutgers-Camden University School of Law, and served as Distinguished Visiting Scholar with the Federal Communications Commission’s Information Needs of Communities Project. You can reach her by e-mail at ellgood at camden.rutgers.edu. Posted
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