Spectrum and the definition of deregulation

by on February 14, 2007 · 16 comments

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.

  • http://www.blogger.com/profile/14019452 Steve R.

    I support Lessig’s position. I also share his outrage “that the current regulatory system is manipulated by special interests to suit their own purposes and not the interests of consumers generally.”

    I won’t reiterate my prior posts. Nevertheless, you raise two points which I do not believe that I responded to before. First, is the assertion that private industry is magically more efficient than government. I would advocate that large corporations may be just as inefficient as government. Ford and GM would be examples of large corporation slowly declining into oblivion. Also the introduction of HDDVDs was delayed by eight years because of corporate bickering over standards.

    Second, you wrote “Well, how will things be any different when government goes about setting his “minimal rules”. How will things be different with private ownership of the spectrum? I would foresee a private industry association forming that would be functionally equivalent to the current FCC for assuring that one party does not interfere with another’s spectrum usage. I don’t see any benefit to trading one regulatory body for another.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I support Lessig’s position. I also share his outrage “that the current regulatory system is manipulated by special interests to suit their own purposes and not the interests of consumers generally.”

    I won’t reiterate my prior posts. Nevertheless, you raise two points which I do not believe that I responded to before. First, is the assertion that private industry is magically more efficient than government. I would advocate that large corporations may be just as inefficient as government. Ford and GM would be examples of large corporation slowly declining into oblivion. Also the introduction of HDDVDs was delayed by eight years because of corporate bickering over standards.

    Second, you wrote “Well, how will things be any different when government goes about setting his “minimal rules”. How will things be different with private ownership of the spectrum? I would foresee a private industry association forming that would be functionally equivalent to the current FCC for assuring that one party does not interfere with another’s spectrum usage. I don’t see any benefit to trading one regulatory body for another.

  • http://www.jerrybrito.com Jerry Brito

    Steve,

    Point to where in the post above I state that private industry is more efficient than government–magically or otherwise. You continue to argue against what you suppose I will say rather than what I have said, and it’s very annoying.

    You may support Lessig’s position, but you have done nothing to defend it from my critique, namely that his plan will be subject to the same inefficiencies that he agrees exist in the current regulatory regime. Why don’t you focus on addressing the ideas I have brought up. Or better yet, why don’t you study up on how radio is regulated in the U.S. before you try to talk about the issue again.

  • http://jerrybrito.com Jerry Brito

    Steve,

    Point to where in the post above I state that private industry is more efficient than government–magically or otherwise. You continue to argue against what you suppose I will say rather than what I have said, and it’s very annoying.

    You may support Lessig’s position, but you have done nothing to defend it from my critique, namely that his plan will be subject to the same inefficiencies that he agrees exist in the current regulatory regime. Why don’t you focus on addressing the ideas I have brought up. Or better yet, why don’t you study up on how radio is regulated in the U.S. before you try to talk about the issue again.

  • http://bennett.com/blog Richard Bennett

    Every one of Lessig’s presentations can be summarized in the following way:

    1. The sky is falling.
    2. The Bad Guys are making it fall, and the government is helping them.
    3. There is a magic property of the technology what only Larry Lessig appreciates.
    4. If you join me in charging the gates, we can free the magic technology from the grip of the Bad Buys and end world hunger.
    5. Buy my book.

    In this one, Lessig touts these White Spaces that can be made available to the people with simple, light regulation in lieu of auctions. Unfortunately, White Spaces aren’t really as magic as Lessig thinks they are. The FCC has already released UWB to The People, by placing severe transmit power level restrictions in place that limit UWB to essentially 20 feet of useful propagation.

    Can we apply this sort of a rule to unused parts of the spectrum? Sure. Can we relax the transmit power restrictions such that somebody could build a wide-area network service out of White Spaces?

    It’s doubtful, but an interesting challenge for people who can practice actual engineering.

  • http://bennett.com/blog Richard Bennett

    Every one of Lessig’s presentations can be summarized in the following way:

    1. The sky is falling.
    2. The Bad Guys are making it fall, and the government is helping them.
    3. There is a magic property of the technology what only Larry Lessig appreciates.
    4. If you join me in charging the gates, we can free the magic technology from the grip of the Bad Buys and end world hunger.
    5. Buy my book.

    In this one, Lessig touts these White Spaces that can be made available to the people with simple, light regulation in lieu of auctions. Unfortunately, White Spaces aren’t really as magic as Lessig thinks they are. The FCC has already released UWB to The People, by placing severe transmit power level restrictions in place that limit UWB to essentially 20 feet of useful propagation.

    Can we apply this sort of a rule to unused parts of the spectrum? Sure. Can we relax the transmit power restrictions such that somebody could build a wide-area network service out of White Spaces?

    It’s doubtful, but an interesting challenge for people who can practice actual engineering.

  • http://www.blogger.com/profile/14019452 Steve R.

    Jerry: You are correct that you did not literally say that private industry is more efficient than government. But then I have the residual question of why some of the language here refers to the government in a negative context and suggests that the correction is privatization.

    I hope that we can achieve a dialog. Perhaps our use of language is different. It is possible that I may not be following your writing style effectively. I will also admit that I am, in certain respects, promoting my own agenda and that I am reacting somewhat like Richard posted above – “the sky is falling”. For me 1984 is here and now and we live in a government of, by, and for the corporations. But, I think you might be going a bit over-board with “Or better yet, why don’t you study up on how radio is regulated in the U.S. before you try to talk about the issue again.” since I do have some (maybe not as much as you) knowledge of how the spectrum is regulated. By the way, I do agree with your post “WaPo: ‘WiFi Turns Internet Into Hideout for Criminals’”

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Jerry: You are correct that you did not literally say that private industry is more efficient than government. But then I have the residual question of why some of the language here refers to the government in a negative context and suggests that the correction is privatization.

    I hope that we can achieve a dialog. Perhaps our use of language is different. It is possible that I may not be following your writing style effectively. I will also admit that I am, in certain respects, promoting my own agenda and that I am reacting somewhat like Richard posted above – “the sky is falling”. For me 1984 is here and now and we live in a government of, by, and for the corporations. But, I think you might be going a bit over-board with “Or better yet, why don’t you study up on how radio is regulated in the U.S. before you try to talk about the issue again.” since I do have some (maybe not as much as you) knowledge of how the spectrum is regulated. By the way, I do agree with your post “WaPo: ‘WiFi Turns Internet Into Hideout for Criminals’”

  • Wisdom of Cowards

    Steve R: I would advocate that large corporations may be just as inefficient as government. Ford and GM would be examples of large corporation slowly declining into oblivion.

    Where’s my Toyota government option?

  • Wisdom of Cowards

    Steve R: I would advocate that large corporations may be just as inefficient as government. Ford and GM would be examples of large corporation slowly declining into oblivion.

    Where’s my Toyota government option?

  • http://www.blogger.com/profile/14019452 Steve R.

    Wisdom: Wish I knew, then I could more effectively respond to Jerry’s request for a more focused discussion through good examples of government management.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Wisdom: Wish I knew, then I could more effectively respond to Jerry’s request for a more focused discussion through good examples of government management.

  • http://www.jerrybrito.com Jerry Brito

    Steve, Maybe the last line in my comment was a bit uncalled-for. But you have to understand how frustrating it is to deal with commenters like you. I spend quite a bit of time carefully crafting a blog post hoping for some enlightening discussion or debate, but invariably the first comment out of the gate is by someone like you who doesn’t take the time to understand what I’m saying and responds with a series of non-sequiturs.

    For example, in this post, as in my paper, I took pains to avoid the debate about whether spectrum should be privatized or not. That’s a debate that’s be done and done. Instead what I focused on was this: Proponents of a commons suggest that their plan would be a third way that suffers from neither the pitfalls of privatization nor government regulation (you can see my paper for a list of instances this argument has been made). The notion is present in the very title of Lessig’s presentation: “Deregulating Spectrum.” Regardless of whether privatizing spectrum is a good idea or not, if we’re going to consider a commons as an option, we should be very clear about it. What I argue is that a commons regime is just as susceptible to the inefficiencies of government regulation as the current system (please observe that in noting that government regulation is inefficient I am not suggesting that markets are perfectly efficient). If I can establish that, then we can have the old debate about what is more efficient, government regulation or private property, and we can avoid the confusion of a false choice of a “third way” that is neither regulation nor market.

    To summarize my argument: Would a commons require government regulation to work? And, if so, won’t it be susceptible to the same corrupting influences for which Lessig criticizes the current system?

    Now, I would have been very happy if you had addressed my argument. Instead you wrote that I “assert[ed] that private industry is magically more efficient than government” and you go on a rant about Ford, GM, and HDDVD. You then miss the point of my rhetorical question (i.e. won’t a commons regime be susceptible to the same corrupting influences for which Lessig criticizes the current system?) and instead ask how a private system would be better, which I never suggest (for the reasons I have explained above). You go on to talk about a private industry association replacing the FCC, etc. This is all very maddening. You’re not taking the time to understand what’s being discussed before you shoot out a response.

    To say we’re talking past each other is an understatement. As Morrissey says, “This is the last song I will ever sing…”

  • http://jerrybrito.com Jerry Brito

    Steve, Maybe the last line in my comment was a bit uncalled-for. But you have to understand how frustrating it is to deal with commenters like you. I spend quite a bit of time carefully crafting a blog post hoping for some enlightening discussion or debate, but invariably the first comment out of the gate is by someone like you who doesn’t take the time to understand what I’m saying and responds with a series of non-sequiturs.

    For example, in this post, as in my paper, I took pains to avoid the debate about whether spectrum should be privatized or not. That’s a debate that’s be done and done. Instead what I focused on was this: Proponents of a commons suggest that their plan would be a third way that suffers from neither the pitfalls of privatization nor government regulation (you can see my paper for a list of instances this argument has been made). The notion is present in the very title of Lessig’s presentation: “Deregulating Spectrum.” Regardless of whether privatizing spectrum is a good idea or not, if we’re going to consider a commons as an option, we should be very clear about it. What I argue is that a commons regime is just as susceptible to the inefficiencies of government regulation as the current system (please observe that in noting that government regulation is inefficient I am not suggesting that markets are perfectly efficient). If I can establish that, then we can have the old debate about what is more efficient, government regulation or private property, and we can avoid the confusion of a false choice of a “third way” that is neither regulation nor market.

    To summarize my argument: Would a commons require government regulation to work? And, if so, won’t it be susceptible to the same corrupting influences for which Lessig criticizes the current system?

    Now, I would have been very happy if you had addressed my argument. Instead you wrote that I “assert[ed] that private industry is magically more efficient than government” and you go on a rant about Ford, GM, and HDDVD. You then miss the point of my rhetorical question (i.e. won’t a commons regime be susceptible to the same corrupting influences for which Lessig criticizes the current system?) and instead ask how a private system would be better, which I never suggest (for the reasons I have explained above). You go on to talk about a private industry association replacing the FCC, etc. This is all very maddening. You’re not taking the time to understand what’s being discussed before you shoot out a response.

    To say we’re talking past each other is an understatement. As Morrissey says, “This is the last song I will ever sing…”

  • http://www.blogger.com/profile/14019452 Steve R.

    Jerry: Thank you for taking the time to respond. I will make a greater effort to review what you are saying so that I can gain a greater understanding before responding.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Jerry: Thank you for taking the time to respond. I will make a greater effort to review what you are saying so that I can gain a greater understanding before responding.

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