A couple of years ago I plugged Jerry Brito’s spectrum commons paper. What I said in that post is still true:it’s a great paper that highlights the central challenge of the commons approach. Specifically, a commons will typically require a controller, that controller will almost always be the government, and there’s therefore a danger of re-introducing all the maladies that have traditionally afflicted command-and-control regulation of spectrum.
I’m re-reading the paper after having read the FCC’s spectrum task force report, and while I still agree with the general thrust of Jerry’s paper, I think he overstates his case in a few places. In particular:
Only if spectrum is first allocated for flexible use, with few if any conditions on its use, can a commons or a property rights regime help overcome the inefficiencies of command-and-control spectrum management. For example, if spectrum is allocated for flexible use, a property rights regime will allow the owner of spectrum to put it to the most valuable use or sell it to someone who will. Similarly, if there are no restrictions on use, a commons will allow anyone to use the spectrum however she sees fit, thus overcoming command-and-control misallocation.
However, while title to spectrum could theoretically be auctioned off in fee simple with no strings attached, a government-created and -managed commons will always have its usage rules set through a command-and-control process. Users of a government commons might not be explicitly restricted in the applications they can deploy over the spectrum, but they will have to comply with the sharing rules that govern the commons. Sharing rules, which will be established through regulation, will in turn limit the types and number of applications that can be deployed.
I think the difficulty here is that just as Benkler and Lessig over-idealize the commons by ignoring the inevitable role for government in setting standards, so this over-idealizes the spectrum property regime. It’s not true that spectrum “could theoretically be auctioned off in fee simple with no strings attached.” The key thing to remember here is that electromagnetic waves don’t respect boundaries established by the legal system. There will always be a need for technical rules to prevent interference between adjacent rights holders. If you hold a spectrum right in a geographic territory adjacent to mine, the government is going to have to have some rules about how much of your transmissions can “leak” onto my property before it counts as a trespass.
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