Spectrum and the definition of deregulation

Today Lawrence Lessig released the second in his series of presentations about what Congress should do on internet policy. The first installment was about orphan copyrights, and I addressed it here. Today, Lessig writes about “deregulating spectrum,” which is an apt title if by deregulating you mean regulating. Lessig likens the current command-and-control system of spectrum regulation to communism, and I think he’s right. He goes on, however, to argue that a property system is no longer the right alternative to regulation.

Instead, Lessig suggests a market not in spectrum, but in devices that use free spectrum without causing interference to any other user. As he says in his presentation, this system would require “minimal rules governing the devices.” What he doesn’t say is who would set these “minimal rules” and what exactly would guarantee that these rules would remain minimal or even rational. The answer, as I explain in my new paper out this week from the Stanford Technology Law Review, is that government will set the rules, and the only tools that government has to make rules is its inefficient command-and-control processes. A “commons” model is not a third way between regulation and property, it is just another kind of regulation.

Lessig also exhibits lots of outrage at the fact that the current regulatory system is manipulated by special interests to suit their own purposes and not the interests of consumers generally. Well, how will things be any different when government goes about setting his “minimal rules”?

One last thing. I take umbrage to Lessig’s reference to those of us who support property rights in spectrum as “property-ideologues,” which I for one take as a pejorative term that implies an unthinking blind belief. He says, these are “people who I will, to be fair, refer to as ‘extremists.'” I may think that Lessig is wrong, but I don’t doubt that he’s considered empirical evidence, given lots of thought to different ideas, and come to his own conclusions for intellectually honest reasons. There can only be reasoned debate if the conversation is respectful, and I would appreciate it if Lessig showed some respect to his intellectual opponents.

Photo by teemow.

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