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.

  • Acting as a buffer by reducing the chance of interference? Sounds wrong, and you should have caught that in editing. Saving words means more space for dealing with ideas.

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.

  • In other words, when the white spaces aren't white spaces anymore at all, right?

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

  • Converge at the hands of? That's not right either, is it? Editing the work means looking at each word to decide if it can be removed or replaced with something clearer.

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.

  • This is all obvious nonsense. The NAB's interest should end with the end of analog television, because under the 1996 Act they are supposed to return all licensed spectrum used for analog broadcasting. Consumer advocacy groups know far more about the spectrum situation than to make these claims for the white space spectrum itself. Quoting nonsense may have a purpose, if you are trying to explain politics that proceeds behind the cover of bullshit. But you have to explain to your reader what is true and what is sham.

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.

  • This paragraph is where you are supposed to be making a transition from a particular instance you have carefully explained to a more general topic your particular explanation renders more perspicuous. But the explanation so far has been less than specific, and amounts to no more than a discovery that spectrum left to be used as commons precisely as a hedgerow between farms developed a useful ecology of its own. Only the most commons-disrespecting macro-libertarian could doubt this proposition, I think.

  • On the other side, where the grander general point is going to be made, it behooves us to be as specific as possible at first statement. No one doubts that under our public trust doctrine the spectrum is managed by government as an active trustee for the public interest, which means subject to a definition of the public good embracing the current consensus of the community. And I think it is equally undoubted that the current social consensus concerning the public good accepts and expects that spectrum use rights will be auctioned, for the benefit of the public fisc, rather than creating new privileged classes of commercial exploiters of spectrum with free licenses. Broadcasters had "public obligations" in return for free access to spectrum. But that deal now looks bad from the public side, because the supposed public access and public information rights in the broadcast domain were largely unenforceable and make little sense in the network age. So there is no basis for the conclusory assertion that spectrum auction is a sign the trustee is failing the public interest.

  • Eminent domain, on the other hand, is the forcible transfer of rights through condemnation: confiscation of real property to serve the public interest through extinction of the owner's right. Just compensation, which probably means in all cases fair market value as determined by a jury, must be paid to the owner under our federal Constitution. It's hard to see how forced redistribution with full compensation compares closely with politically accountable public trust management.

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.

  • The question, whether the public's powers of eminent domain should ever be delegated to private parties was settled in the 19th century: railroads, privately-financed urban mass transit, utilities and other infrastructure developments would be difficult or impossible if individual owners could veto large-scale public works as holdouts for post-development prices. Once again, it's surely possible to consider existing doctrine wrong, but it's hard to see how that discussion is productively compared to the decision by the FCC not to regulate the use of certain previously-unregulated public property.

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.

  • To say that people are being robbed of their land who are being forced to receive full fair market value isn't even sound rhetoric, let alone sound policy analysis. To say that "the public should control the airwaves" seems to imply that reserving some spectrum for air traffic control or radio astronomy is somehow a violation of the public interest. It's hard to see how that could be true. So it must be a matter of degree rather than kind, and the decision whether to license spectrum rather than making it available for unlicensed uses should surely rest on more than rhetoric about our owning it already.

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.

  • But this isn't the result of the decision to sell spectrum licenses at auction, this is the result of giving away spectrum to particular businesses in return for illusory and enforceable public obligations rather than allowing them to develop their own businesses while contributing to the public welfare by renting the spectrum their businesses use, and doing our public-interest communicating using other spectrum resources.

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.

  • This can be true without terminating the conception of the public trust, because it bears on the licensed/unlicensed distinction rather than the public administration/private exclusionary control distinction.

I think this is a good beginning. More redrafting after more rethinking will improve this essay mightily.



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r9 - 17 Nov 2008 - 23:43:37 - EbenMoglen
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