The Uncommon Unlicensed – A Licensed Commons « Communications Insights: Trends and Cool Stuff

The Uncommon Unlicensed – A Licensed Commons

I received a license, and my property rights all turned to commons.

I recently read Kevin Werbach’s excellent article on the TV white spaces, The Wasteland (not to be confused with T.S. Eliot’s The Waste Land). I shared some of my ideas on his article with Kevin, and after an email exchange I came to the conclusion that there is a significant challenge to the successful opening up of the TV white spaces.

Under the White Spaces order, any unlicensed device which will operate in the band has to query a database and obtain permission before it can start transmitting. Kevin argues that the white spaces database is independent of spectrum policy. While that might be true, the imposition of the database will certainly hold implications for spectrum policy. When a white spaces device has to query a database and obtain permission before it can operate, it is, by definition, no longer an unlicensed device. Rather, the regime is a licensed commons. This grant of permission is in fact a form of a license, albeit a light one.

Let me digress for a second. A license is a grant of permission to do something. It affords the right to “verb a noun”. With a license one may: drive a car, own a dog, (try to) catch a fish, marry the woman of his (or her, depending on the state) dreams, or emit radio energy into the ether. A spectrum license is usually coupled with some expectation of interference protection, but not always. The FCC already has utilized a myriad of different license types, including license-by-rule, operator, class, station, and geographic. (I detail several different license types in my 2004 TPRC paper, at pp. 9-16.)

In my 2006 law review on Personal Communications Services (PCS), I examine both the licensed and unlicensed version of PCS. The licensed commons is one of the factors which killed the unlicensed version PCS. For unlicensed PCS, the FCC created a regime under which unlicensed users had to get permission from a non-profit firm called UTAM before they could start using their unlicensed PCS devices. In doing so, the FCC inadvertently delegated to UTAM the power to grant licenses.

Think of the poster child for the unlicensed regime – Wi-Fi. I can turn on my Wi-Fi anytime, anywhere, and leave it on until Ron Coase’s cows come home from grazing on the commons. No grant of permission is required to access the spectrum (emit RF energy). Now, consider a white spaces device. When it turns on, it has to access a database somewhere and get the Okay to start emitting RF energy. This is a grant of permission and is a form of a license, although the FCC has made Google or whoever is running the database is now the de facto licensor.

A licensed commons can be a very good thing. Ham radio and the interstate highway system are both licensed commons and have both been very successful. So, this type of arrangement can work in practice; however, when the alternative is less restrictive, the licensed system will not be desirable. The FCC’s Part 15 rules are the international gold standard for unlicensed (and licensed-exempt) operation. They are the one area where U.S. communications policy still clearly stands head and shoulders above the rest of the world. The reason the Part 15 rules work so well is that it is spectrum policy without the spectrum (mathematically, spectrum policy – spectrum = Part 15). The rules simply consider what is the maximum amount of irradiated power which can be emitted by a device without an unacceptable probability of causing harmful interference. It is a classic efficiency approach and should be the basis of all radio operations.

In order for the White Spaces Order to be successful, it must offer device manufacturers and device users more benefit than they could achieve by using the existing Part 15 rules. Device manufacturers can make devices to operate under the less restrictive parts of the Part 15 rules (the U-NII and spread spectrum rules). So, they never made any successful products for U-PCS. The same will be true for the White Space rules. In order for the White Space database system to work, it will have to offer greater flexibility, more power, wider tuning ranges, more suitable frequency bands, etc. than the current Part 15 rules allow.

Insight: Should the band not deliver on its promise, the punditocracy on the ‘property rights’ side of the spectrum policy debate will say: “I told you so – unlicensed never works.” The sad irony is that if the White Spaces rules fail to deliver, it will not be because it is an unlicensed regime, but because it is truly a licensed regime. I told you so, first.

Tags: FCC, Kevin Werbach, Optimal level of regulation, Part 15, spectrum policy, TV White Spaces, unlicensed wireless devices, Wi-Fi, Wireless Communications

This entry was posted on Wednesday, March 24th, 2010 at 2:00 pm and is filed under Optimal Regulation, TV White Spaces, Wireless Communications. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Andrew Harms

If a less restrictive version of the part 15 rules are adopted to meet the needs of White Space, would the definition of “harmful interference” need to change? Do current part 15 rules account for TV White Spaces, or does it fall outside Part 15 regulation and have different characteristics? rnrnThank you
Andrew Harms

If a less restrictive version of the part 15 rules are adopted to meet the needs of White Space, would the definition of “harmful interference” need to change? Do current part 15 rules account for TV White Spaces, or does it fall outside Part 15 regulation and have different characteristics?

Thank you
http://kennethrcarter.com/CoolStuff Kenneth R. Carter

Andrew, thanks for your questions. To begin with, there is no really clear definition of what exactly constitutes harmful interference. (http://cli.gs/ST34qd) However, the FCCu2019s definition is not generally with in the Part 15 rules. That said, it is my considered opinion that the Part 15 rules are in fact overly restrictive. FCC could certainly make the rules less restrictive before harmful interference became a major problem. When was at the FCC, I developed some data for my 2004 TPRC paper which supports that conclusion: In the first 4 years of the Enforcement Bureau, from 2000 to 2003, 9.7% of the EBu2019s case load related to interference problems. Of those nine percentage points, only 1.7% related to Part 15. In other words, a mere 65 cases out of the full 36,000 case load (0.16% of the total) in four years were related to unlicensed. While these numbers are a bit out of date, I cannot imagine that the percentages have changed very much. To your second question, it is not so important where the White Spaces rules are codified. I believe that they will be codified at 47 U.S.C. u00a715. However, what is important is that they offer more than the existing regime. As I allude to in the blog entry, the TV bands are better frequency ranges in terms of congestion and propagation characteristics than the 2.4 or 5.8 GHz ranges in which Wi-Fi currently operates. Unlicensed operation is, however, permitted in the 902 to 928 MHz band, just above the TV beach-front spectrum. I hope this answers your questions.
http://kennethrcarter.com kennethrcarter

Andrew, thanks for your questions. To begin with, there is no really clear definition of what exactly constitutes harmful interference. (http://cli.gs/ST34qd) However, the FCC’s definition is not generally with in the Part 15 rules. That said, it is my considered opinion that the Part 15 rules are in fact overly restrictive. FCC could certainly make the rules less restrictive before harmful interference became a major problem. When was at the FCC, I developed some data for my 2004 TPRC paper which supports that conclusion: In the first 4 years of the Enforcement Bureau, from 2000 to 2003, 9.7% of the EB’s case load related to interference problems. Of those nine percentage points, only 1.7% related to Part 15. In other words, a mere 65 cases out of the full 36,000 case load (0.16% of the total) in four years were related to unlicensed. While these numbers are a bit out of date, I cannot imagine that the percentages have changed very much. To your second question, it is not so important where the White Spaces rules are codified. I believe that they will be codified at 47 U.S.C. §15. However, what is important is that they offer more than the existing regime. As I allude to in the blog entry, the TV bands are better frequency ranges in terms of congestion and propagation characteristics than the 2.4 or 5.8 GHz ranges in which Wi-Fi currently operates. Unlicensed operation is, however, permitted in the 902 to 928 MHz band, just above the TV beach-front spectrum. I hope this answers your questions.
Andrew Harms

Thank you Ken, this is very helpful. Harmful interference is now clear from Margie’s article. rn rnMaybe a technical point, but if current unlicensed Wi-Fi hotspots are limited to smaller areas, how are they able to receive signals/information from beyond their range, and how are the outside signals transfered into the wifi hotspot? How might that be limiting? rn rnAnd if white spaces in urban areas were to be unlicensed, what sort of commercial models would develop? Could this mean that a larger section of a city could be covered with wifi, perhaps offered through a company charging a fee, or maybe being used as public access? (Free wifi throughout central park…) – Is it possible that if White Spaces are unlicensed for a time, and certain technological innovations are developed and established, that there might be a later need for licensing in White Spaces? rnrnFinally, would there be different policy created for use of white spaces in rural areas compared to urban areas?
Andrew Harms

Thank you Ken, this is very helpful. Harmful interference is now clear from Margie’s article.

Maybe a technical point, but if current unlicensed Wi-Fi hotspots are limited to smaller areas, how are they able to receive signals/information from beyond their range, and how are the outside signals transfered into the wifi hotspot? How might that be limiting?

And if white spaces in urban areas were to be unlicensed, what sort of commercial models would develop? Could this mean that a larger section of a city could be covered with wifi, perhaps offered through a company charging a fee, or maybe being used as public access? (Free wifi throughout central park…) – Is it possible that if White Spaces are unlicensed for a time, and certain technological innovations are developed and established, that there might be a later need for licensing in White Spaces?

Finally, would there be different policy created for use of white spaces in rural areas compared to urban areas?
Wlehr

Ken makes very important points. Nuanced spectrum reform needs to recognize that unlicensed is not a single regulatory framework and does not reflect a binary choice between property rights v. unlicensed. They are ALL property rights regimes, with different implications for different contexts. The are not cast in stone and can and should evolve over time.
http://kennethrcarter.com/CoolStuff Kenneth R. Carter

Bill, thanks for your insightful comments. Many incorrectly view the licensed/unlicensed as an either or dichotomy. This is a left versus right view of the world. More accurately, the FCC’s unlicensed regime is viewed as an over versus under distinction. The jurisprudence of the Part 15 Rules has historically been that if the field strength of the emissions is sufficiently weak, they do not rise to the level of being “spectrum”. So, as you point out the nuanced question is not whether we allow unlicensed operation, but rather how much unlicensed operation should we allow.
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