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.
