Brito Deconstructs Spectrum Commons Theory

Fellow TLF-er Jerry Brito has just released an important new study on spectrum policy that is must-reading for those of you who monitor ongoing wireless policy battles. His new Stanford Technology Law Review article is entitled “The Spectrum Commons in Theory and Practice.” In it, he thoroughly deconstructs spectrum commons theory and debunks the myths propagated by Professors Lawrence Lessig, Yochai Benkler and others who believe that a spectrum commons offers us a “Third Way” approach to spectrum management that is both free of government control and highly efficient.

To the contrary, Brito argues, “A commons must be controlled either by private actors or by the government. There is no ‘third way.'” And “there is nothing that will make this new government regulation free from the same protracted and inefficient processes that have thus far plagued decisions about spectrum,” he finds. Brito pinpoints the fundamental flaw in the commons mindset in paragraph 28 of the paper:

Commons advocates suggest that the power to regulate communications equipment and mandate sharing rules is not the same as control over spectrum use. The definition of ‘control’ that they employ is limited to power over who may transmit over a certain band. But just as important as who may use spectrum is how they may use it. Indeed, current FCC licenses define not just who may transmit over a certain channel, but what technology they may use, what content they may transmit, and even what business model they may employ. Even if transmission were open, authority to set rules about what kind of equipment is allowed to transmit–in government or private hands–is control over how the spectrum may be used because any decision in favor of one type of equipment or technology necessarily excludes others. Whoever has the power to set and enforce rules stipulating how all or a portion of the radio spectrum can be used is the de facto, if not de jure, controller of that spectrum.“

That really nails the problem with commons theory, in my opinion. Commons advocates have created a sort of techno-mythology about spectrum management that sounds more and more like utopian socialism when you get right down to it. They want us to believe that the state will gradually wither away under their scheme as spectrum users all voluntarily agree to abide by Romper Room rules (“sharing is good!”) and avoid disputes and conflicts that could lead to spectrum anarchy. Brito points out that even Lessig admits that “It is an iron law of modern democracy that when you create a regulator, you create a target for influence, and when you create a target for influence, those in the best position to influence will train their efforts upon that target.” But then Lessig inexplicably goes on to argue that a spectrum commons will largely be immune from such influences and inefficiencies. As Brito rightly asks: “[W]hat will now ensure the enlightenment that was unknown to the regulators of the past?”

Good question, and the commons crowd has no answer for us. That’s why property rights and market allocation of spectrum make more sense. They provide a more efficient, time-tested method of allocated scare resources.

Importantly, Brito also makes it clear why it is important that we not get sucked into believing that Wi-Fi and Bluetooth applications somehow provide a model for how all spectrum will work, or be allocated, in the future. In a nutshell, they don’t scale well. As Brito concludes in paragraph 83 of his study:

“Many unlicensed applications–such as Wi-Fi and Bluetooth–are nonetheless viable because they are by and large deployed in relatively small spaces that are controlled privately by one party–whether it is a home, a coffee shop, or a university campus. Because these parties control their physical domains through private property rights, they can control and coordinate use of the unlicensed spectrum in their space so as to minimize interference. In this sense, users of unlicensed spectrum provide their own enforcement within their physical domains because they internalize the costs and benefits of that enforcement. When an unlicensed (or nonexclusive licensed) use of the band extends beyond a privately controlled domain, the benefits of enforcement are no longer internalized by one party.”

Brito also discuss the FCC’s recent 3650 MHz proceeding, which is an attempt to impose a commons model in one 50 MHz block of spectrum. I used to be open to this sort of experimentation and the idea of throwing the commons crowd a small bone at times to keep them happy. But after reading Jerry’s dissection of the 3650 mess, I’m now prepared to admit I was wrong. We are making a grave mistake if we start squandering more and more spectrum on such misguided commons experiments. Read Jerry’s entire study and you’ll understand why.

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