Law in the Internet Society
-- StephanieLim - updated 20 Nov 2008

The Red Herring

The term WhiteSpaces refers to the portions of the radio spectrum left deliberately unused between licensed channels. In October 2006, the FCC authorized low-power wireless devices temporary use of the white spaces, as licensed broadcasters abandon the spectrum in the anticipated switch to digital television in February 2009. On November 4, 2008, the FCC ruled to allow unlicensed use of the white spaces.

After the switch to digital television, however, how relevant will this ruling be? With all the licensed broadcasters vacating the spectrum, WhiteSpaces will no longer be the bargaining chips for community advocacy groups; the entire broadcast spectrum will be up for grabs.

The National Association of Broadcasters (NAB) presented the strongest opposition to the FCC ruling, squabbling with consumer advocacy groups and the White Spaces Coalition over "proof of concept” that devices operating in white spaces would not interfere with licensed airwaves. Although in October 2008 the FCC decided that the burden of proof had been met, the NAB have jumped on the imperfect results, preying on a combination of fear and the general lack of technical knowledge. Citing risks in emergency response, public safety, privacy, and licensed, commercial uses, the NAB has called for delays until a more robust burden of proof can be met. A major support group, the White Space Coalition, composed of technological corporations, has been working with the FCC to do just this. The NAB’s continuous involvement is curious, given that, in the digital world just a few months away, the NAB will completely lose its stake in the broadcast spectrum, per the 1996 Telecommunications Act.

Hold the Champagne…

Historically, unlicensed (illegal) use of WhiteSpaces--most notably by churches, the performing arts, and pirate radio--has been overlooked by the FCC. If we bear in mind that the primary goal of the FCC is to guard the public interest, we must learn from past regulations to see that auctioning off public property to the highest bidder hardly meets this goal. Currently, flexible use of white spaces is leading to innovations in wireless technology, diversification of users and producers, and improving the dynamic relationship between users and producers.

But we are overlooking the greatest travesty here, which is that the airwaves are public space, and as such, their governance does not reflect this. The fact that the public is forced to scramble after these tiny crumbs of the vast airwaves suggests that something has gone awry. The buying and selling of spectrum rights and licenses shows that this public resource has been long out of the public domain. The government continues to be the gatekeeper of the spectrum, and will parcel them out eminent-domain style according the whims of whomever is in power. What is missing right now is well-informed public debate about how to go forward with the newly opened broadcast spectrum in February 2009. The WhiteSpaces outcome, though a seeming victory for public, was granted only on a temporary basis and, like other past outcomes, cannot serve as a model for future allocations of public resources. In this instance, the FCC is distracting the public from their lack of access to the airwaves by allowing them flexible use of a tiny portion over what they should, by all rights, have much more control.

From The Trustee to The Trust

In Regulating Broadcast Programming, Krattenmaker and Powe attribute America’s overconfidence in the regulators to the branding of the benevolent “trustee” looking out for the public good. This was a successful public brainwashing campaign, casting the public as too uncomprehending and unskilled to possibly manage the spectrum for itself. Today’s technological advances, beyond the proof of concept paradigm, show the need for a re-education campaign that the airwaves, long since held from the public, are now more manageable—and needed—than ever before. Technological innovations are making the airwaves more expansive, accessible, and valuable than ever before, calling for a reevaluation of how we govern them. Unlike land, the spectrum is not a fixed, tangible resource. But, like land, externalities can effect its value and use. Because the costs of entry have been lowered, the trustee model must be replaced by the communal trust, and a new structure of governance must reflect this newly emerged paradigm of an open spectrum.

Previously, the social contract between broadcasters and the public hinged on the delivery of news and other content beneficial to the community. Distribution of this content was considered a public good, in the public interest, via a public resource. But in the new economy, community-relevant content as a public good has become increasingly a responsibility of the community itself, as corporate broadcasters have proved themselves unable to make public goods profitable. Inasmuch, the governance of the spectrum—and the new social contract within its own user-producer community—should reflect a new, more flexible way of public governance.

The maintenance of a commons-based resource always comes into conflict with recurring issues of governance, funding, corruption, stability, and relevance. Enter the trust system. Public parks have had much success being maintained through trusts and conservancies. While this metaphor has limited use, we can note that although a park is fully open, few people attempt to live in parks on a permanent basis, and the park trust typically funds some sort of enforcement system that would prevent such squatters from taking advantage of the open system. A Spectrum Trust would function in much the same way, funded by consumer advocacy groups, the main expenditure being enforcement of the commons-nature of the spectrum. It is not until we have sustainable common ownership, governance, and use of the airwaves that we can truly consider them public.



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r12 - 04 Sep 2009 - 22:02:37 - IanSullivan
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