Three Cheers for the FCC Spectrum Task Force Report

The report begins by acknowledging: “The time is ripe for spectrum policy reform. Increasing demand for spectrum‐​based services and devices is straining longstanding and outmoded spectrum policies.” The report notes that the FCC’s traditional “command‐​and‐​control approach” to spectrum management is the primary cause of regulatory failure because that approach has imposed significant usage restrictions on spectrum use and users. The task force then goes on to suggest a bold vision for governing spectrum in the future that has as its cornerstone the principle of flexible use. Importantly, however, the task force notes that there are two ways to achieve the goal of increased flexibility‐​through exclusive use rights or by way of a “commons” model of governance. Under an exclusive use model, spectrum holders would be granted clearly defined rights and have the ability to use or sell their spectrum however they wish. This is really just a good old‐​fashion private property rights regime for spectrum allocation, even though the FCC doesn’t call it that. Under a commons model, by contrast, spectrum would not be exclusively held, but instead shared among many users who would use frequency‐​hopping technologies to scan the spectrum for unused frequencies. Using smart antennas, software‐​defined radios, and mesh networks, spectrum users would increasingly be able to simultaneously operate alongside other exclusive spectrum users if such “overlay” or underlay” rights are permitted for low‐​power, non‐​interfering devices and transmissions.

The intellectual battle between adherents to the property rights and commons models of spectrum governance has been a refreshing telecommunications debate for two reasons. First, at the heart of both models is a desire to promote increased flexibility, innovation, and efficient use of the spectrum resource. More important, both groups generally agree that the current command‐​and‐​control system is a complete failure and must be replaced. Indeed, both commons and property rights proponents question the continuing need for the FCC in this process at all. Second, and perhaps because of these preceding points, this war of ideas has not been characterized by the rancor typically witnessed in other telecom industry disputes. Advocates of both models have been willing to listen to one another, take seriously the criticisms of the other side, and even integrate some of their suggestions into each other’s models. And there is good reason for them to do so. Ultimately, the future of spectrum governance cannot come down to an either‐​or choice between these two models; rather, it must reflect a synthesis of the two schools of thinking. Property rights proponents are correct to stress the important benefits of exclusive use in the spectrum resource since many users want the freedom to own, sublease, combine, or sell spectrum on their own terms. Moreover, many current incumbent users of spectrum will argue that they have de facto rights in their spectrum licenses and should be granted unconditional property rights anyway.

On the other hand, the commons crowd is equally correct in stressing the importance of preserving certain portions of the spectrum for shared, nonexclusive use by companies and consumers. Such shared use could take one of two forms. First, government can designate (or, better yet, purchase at auction) certain bands of spectrum for commons use, much as it purchases large portions of land for public parks and opens those areas to common use. In addition, overlay and underlay areas should be allowed throughout the spectrum as long as users do not interfere with other users. This is a quite practical solution as such “easements” already exist today in some bands of the spectrum, but many other underutilized portions of the spectrum could be opened up for such homesteading. Finally, it is important to acknowledge that private spectrum owners will likely contract with independent users to create commons areas within their exclusive allocations. Just as shopping mall owners lease store or sidewalk space to third parties, so too will private spectrum band managers sublease portions of their property for other uses, including commons areas.

Now that the Spectrum Task Force has done such an outstanding job of laying out the problem and some potential solutions, the next logical question is when and how this new vision will be put into action by policymakers. Ironically, another remarkable report issued by the FCC the same day as the Task Force report may offer a first step. In a new working paper entitled “A Proposal for a Rapid Transition to Market Allocation of Spectrum,” an ingenious scheme to expedite the transition to a spectrum free market is outlined by Evan Kwerel and John Williams of the FCC’s Office of Plans and Policy. Kwerel and Williams, who have done pioneering work on spectrum policy at the FCC, propose to exhaustively auction off untapped or underutilized spectrum while encouraging incumbent licensees who control large swaths of spectrum to put their holdings on the auction block. Although incumbents would have the right to opt out of the auction entirely, if they put their spectrum on the block they would have the ability to buy back that spectrum and gain complete and immediate operational flexibility. If they didn’t put it up for auction, flexible use would be denied for five years. They would also have the right to accept the highest price bid for their spectrum and just walk away. For incumbents, such a scheme would help reveal the market price of spectrum and give them an idea of what the true opportunity costs of holding that spectrum really were. For others desiring more spectrum, this process would finally give them a chance to get their hands on it.

Even if the FCC took no more action on this issue, the Spectrum Task Force report and the new OPP study would likely constitute the most important legacy of the Bush administration’s FCC. But there is good reason to believe that the agency will take action; it has already has taken several other important steps on this front, and its leaders remain committed to the task of spectrum reform. For example, in a recent speech, Chairman Powell argued: “Today’s marketplace demands that we provide license holders with greater flexibility to respond to consumer wants, market realities and national needs without first having to ask for the FCC’s permission. I believe license holders should be granted the maximum flexibility to use‐​or allow others to use‐​the spectrum (within technical constraints) to provide any services demanded by the public.” And during the Cato Institute’s annual Technology & Society conference last week, FCC commissioner Kathleen Abernathy delivered a sweeping set of remarks on spectrum reform that mirrored the task force report’s findings. It would have been unthinkable for an FCC official to deliver such speeches even 10 years ago. This is a stunning sea change in opinion on federal spectrum management. The FCC, and the Spectrum Task Force in particular, deserves high praise for this ground‐​breaking report and breathtaking set of policy recommendations.