Law in the Internet Society
-- StephanieLim - 22 Oct 2008

The Red Herring

The term WhiteSpaces refers to the portions of the radio spectrum left deliberately unused to act as a buffer between licensed channels by reducing the chance for interference.

In October 2006, the FCC authorized low-power wireless devices temporary use of the white spaces, as broadcasters abandon the spectrum in the anticipated switch to digital television in February 2009.

The debate over White Spaces has taken on three major dimensions, all of which will converge at the hands of the FCC.

Consumer advocacy groups are focusing on the public interest piece of the debate, maintaining that opening up WhiteSpaces could aid in closing the digital divide. Allowing access to white spaces could provide countless under-served populations with access to the Internet at no cost. Ironically, opposition groups like the National Association of Broadcasters (NAB) have been appealing to the public for support in maintaining the integrity of the public airwaves--by closing them to public use.

Additionally, opponents have called upon major device manufacturers to provide "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, groups like 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. On November 4, 2008, the FCC ruled to allow WhiteSpaces to remain unregulated.

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.

Did I just say Eminent Domain?

With the physical restructuring of Morningside Heights, it would hard to ignore the many similarities between the use of eminent domain in Columbia University’s "Manhattanville" expansion projects and the spectrum allocations. In the case of Columbia’s expansion, major decisions concerning land allocation are being made under the guise of the public good. However, the public involvement has been largely token rather than effective, in the same way that the FCC ruling literally gives away unused slices of the spectrum to the public—who, in reality, already owns them.

Columbia’s use of eminent domain in the name of economic development is similar to the government’s purposefully broad notion of the public good in retaining the vast majority of the spectrum for its own purposes. While Columbia is scurrying about to placate the very people they are robbing of their land through valueless community benefits agreements, the FCC is distracting the public from their lack of access to the airwaves by allowing them flexible use of a tiny portion of what they should, by all rights, control. Even though we have relinquished all jurisdiction over the airwaves and, in the Manhattanville example, the very land upon which our community is built, we are more likely to fight over unfair land allocation because it is more visible, more finite, and the effects of its elimination more immediate.

The token benefits promised to the community are equally ludicrous. Corporate broadcasting has failed on all accounts to serve the public interest in the same way that community benefits agreements historically fail to deliver. The main difference in these failures is that localized CBA’s collapse due to lack of enforcement while broadcast deficiencies are a result of the ill-defined public interest.

The Trustee

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.



Webs Webs

r8 - 14 Nov 2008 - 22:41:32 - StephanieLim
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