Tales of the Sausage Factory

My Academic Article on Unlicensed Spectrum Gets Published

Every now and then, I take a break from the delightful and snarky world of blogging to dash off the odd researched piece for an academic journal. This is always an annoying and painstaking process, because academic journals want footnotes not just the occassional link. They also dislike articles that use terms like “incumbent whankers.”

Still, the effort (when I can find the time for it) is usually worth it — at least from my perspective. You can judge for yourself by following the link to the Commlaw Conspectus website and downloading From Third Class Citizen to First Among Equals: Rethinking the Place of Unlicensed Spectrum in the FCC Hierarchy.

For those unsure if its worth slogging through 39 pages of lawyer writing, here’s a summary. The FCC has a basic hierarchy of licensed spectrum, licensed by rule (family radio service and a few other things), and unlicensed spectrum. From a wireless perspective, the FCC exists for licensed spectrum, has a few oddball things licensed by rule, and has a few slivers of space open for unlicensed spectrum. Unlicensed spectrum is the “third class citizen,” required to shut off if it causes the least interference to licensed services while accepting any interference that comes its way. When the FCC allocates spectrum rights, it does everything possible for licensed services while looking with askance at the free-wheeling unlicensed poor relation. As a result, licensed services get choice spectrum and unlicensed services get the leavings — and that on sufferance.

In my article, I argue that the First Amendment calls for standing this on its head. Licensing of spectrum came about because old technology couldn’t handle everyone using this all at once we call this the “scarcity rationale,” because the need to license spectrum to avoid interference made licenses ‘scarce’). But because the FCC must give the approval for any new technologies, the technology to eliminate scarcity (and thus eliminate the need for exclusive licensing) will never come about. This circular reasoning offends the First Amendment. Accordingly, when the FCC considers whether to permit unlicensed uses, it should need to justify its decisions under a higher Constitutional standard than it does in other licensing cases (“intermediate scrutiny” rather than “rational basis” for all you legal types out there).

Besides, I argue, it’s also better policy.

While I hardly expect the FCC and the federal courts to read my piece and exclaim: “At last! What perfect wisdom! What fools we have been!” I do hope this helps advance the debate some. As with everyone else who publishes in a field where the debate has simmered for a few years, I argue for a “third way” between licensing and commons. Rather than eliminating exclusive licensing altogether, or proposing we split the spectrum down the middle, I propose allowing a gradual evolution in technology and until exclusive licensing will gradually wither away, with perhaps a handful of truly sensitive services still licensed exclusively.

Of course, if that happened, your cell phone bill would drop like a rock, ubiquitous wireless broadband would become too cheap to meter, and television and radio conglomerates would lose their precious monopolies on the airwaves. So don’t hold your breath.

Stay tuned . . .

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Tales of the Sausage Factory

Rethinking the Paradigm: From “Theft of Wi-Fi” to Public Nuisance or “My Noisy Neighbor, Mr. Lynkisis”

This recent piece on mobile phones that use VOIP through open access points has revived the debate on whether your use of an open access point constitutes “theft” of wifi or “tresspass” into my neighbor’s network.

I’d like to suggest that we flip this and ask a different question: is my noisy neighbor Mr. Lynksis, who blasts his access point into my home thus causing interference and potentially screwing up my own network settings, a public nuisance? And if so, what should I do about Mr. Lynksis, the noisy neighbor that I may not even be able to locate with certainty?

As I argue below, I think we should establish by law that any open access point detectable by standard hardware and software is available for public use (assuming I have a legal right to be in the physical location I’m in when I detect the network). Such a law will poduce positive social benefits, whereas a presumption that use of an open access point is “stealing wifi” produces social costs.

My analysis below . . . .

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Inventing the Future

To the Thief Who Has Stolen My Sign

[Next week’s election includes an amendment to the Wisconsin state consitiution. The amendment excludes homosexuals from whatever protection they might otherwise have, in that it prohibits the legislature from granting any civil union or other benefits except for couples defined on the basis of gender. Specifically, each couple is prescribed to be one man and one woman.

A friend asked me to put up a small sign that reads “A fair Wisconsin votes No …on the civil union ban.” Two days later, the sign had been stolen from my lawn on a non-through street.

I’ve replaced the sign, and attached the following letter.

I welcome comments and improvements, as I think I might share this letter with others, the local papers, etc.]

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Tales of the Sausage Factory

I'm Speaking Tomorrow (9/13/06) On the Hill

We’ve been down a few days for technical problems. Sorry and welcome back.

Tomorrow (9/13/06), I’ll be speaking at an event sponsored by Americans for a Secure Internet on what to do about ICANN, the Internet Governance Forum and upcomming meeting in Athens, and what’s wrong with making the rest of the world dance “the macarena” or lose their ccTLD. (Although you can get more recent information from the Internet Governance Project, or ICANNWATCH, or Susan Crawford’s bog but none of them reference the macarena!)

The event is scheduled for 12:30 p.m. to 2 p.m. at the House Rayburn Building B-340. I append the information from the flyer below. Here are a few links to my other ICANN blog entries:
Tiering, It’s Not Just for Telcos Anymore
My Take on WSIS and DNS
The Verisign Lawsuit: More Than Just Sitefinder
If ICANN Regulated Cars (real old)
______________________________________________________
AMERICAN FOR A SECURE INTERNET

Buffet Lunch and Panel Discussion

Does the U.N. Want to Govern the Internet?

Hosted by Americans for a Secure Internet

Wednesday, September 13, 2006

12:30-2 PM

Rayburn B-340

Last November, the Congress passed a Joint Resolution affirming that the current structure of Internet management—with U.S. oversight—was working well and should be maintained without interference from the United Nations.

But the UN is not so easily dissuaded. They’re meeting in Athens at the end of October to plan an array of new initiatives that could clash with ICANN’s management of the Internet.

Join Americans for a Secure Internet for a lunch buffet and panel discussion on Wednesday, September 13, to learn how changes to current Internet governance could compromise the integrity of its infrastructure, and the continued growth of eCommerce.

Topics include:

* The U.N.’s IGF and its plan for a prolonged campaign to gain control of the Internet and remove America from its dominant position
* How the IGF’s proposals create real barriers to eCommerce by turning the Internet over to a collection of foreign governments, including those that practice massive censorship like China, Cuba, Iran, North Korea, and Saudi Arabia
* How the Internet needs a “manager” and not a “governor”—and the difference between the two
* The current ICANN arrangement and how it allows for distributed control of the Internet
* The threat to technical development and improvement of the Internet by trapping its management inside a multitude of new agencies and programs

Get to know these issues that will be discussed at the IGF meeting and the potential effects. All Congressional staff involved in technology and eCommerce issues should attend.

Panelists include:

Ambassador David Gross
Ambassador, Bureau of Economic and Business Affairs
U.S. Department of State

Harold Feld
Senior Vice President
Media Access Project

Brian Cute
Vice President, Government Relations
VeriSign

Steve DelBianco (moderator)
Executive Director
NetChoice

RSVP
If you plan to attend, please RSVP to Melissa Moskal at mailto:mmoskal@actonline.org or 202.420.7484.

About ASI
Americans for a Secure Internet is a coalition of trade associations, public policy think tanks, businesses and individuals who share a deep concern about the future of Internet security. Visit www.protectingthenet.org for more information.

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Tales of the Sausage Factory

What the FAA?

How the heck did the Federal Aviation Administration (FAA) get into regulating the wireless industry (both licensed and unlicensed)? The FAA has proposed requiring pretty much any wireless service with an antenna to fill out a form for every antenna and antenna change. Right now, only services with big antennas (like broadcasters) near airports fill out FAA paperwork.

As the FCC gently points out in its own filing, the FAA does not seem to understand just how much this would increase paperwork for the industry — and for the FAA to process. Given that the FAA does not seem to have any reason to think that these antennas will cause rampant interference and bring planes out of the sky, maybe the FAA wants to rethink this?

Other industry groups, such as the National Association of Broadcasters, the Cellular Telecommunications and Internet Association, and various professionals have all stopped by to politely sugest to the FAA that, perhaps, the FAA HAS LOST ITS BLEEDIN’ MIND AND DOES NOT KNOW WHAT THE HECK IT IS TALKNG ABOUT.

What’s interesting for me is that this is yet another demonstration of how the various components of the Bush administration just don’t seem to ever speak to each other. During Katrina, the FCC outshone just about every other federal agency in the competence department. But as the FCC’s Katrina Report (and testimony from my friends in the wireless community who came down to help in the crisis) shows, there were huge problems getting the other government agencies to respect FCC authorized damage control teams and FCC licensed services. Meanwhile, we have the Patent and Trademark Office negotiating a major overhaul of broadcaster rights at a WIPO treaty, with apparently no involvement from the FCC or any other potentially impacted agency. The Chair of the Federal Trade Commission has announced it will set up its own task force on net neutrality — again without any apparent involvement of the FCC.

And that’s just the stuff in my own little corner of the world. Look around Washington these days and you see little effort by the Bush administration to require any kind of cooperation among the various agencies. We get overlap, paralysis and turf wars galore. But we don’t seem to be getting much done.

It’s not all bad, of course. Traditional relationships, like between the FCC and the National Telecommunications Information Administration (NTIA) appear to be working just fine. But something is seriously wrong when the FAA just decides to issue a notice about all antenna structures in the United States, and apparently does not even think about picking up the phone first and calling someone at the FCC and saying “Hi there, we’re thinking of doing a rulemaking on stuff that impacts industries you closely regulate; can we get together and chat first so we don’t horribly embarass ourselves?”

Stay tuned . . . . .

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Tales of the Sausage Factory

How Broadcasters Make Lobbying Lemonade Out of National Catastrophe Lemons

Jim Snider at New America Foundation has written an excellent piece extensively documenting how broadcasters leverage their response in national emergencies and support of charitable causes to get special regulatory goodies and rules that keep competitors out. You can dowload a copy here.

While in one sense not news to anyone in DC, most people are unaware how broadcasters shamelessly take the coverage of local charity events or other efforts (which (a) are local news and so worth doing anyway, and (b) other companies routinely do) and use them to justify many billions of dollars in privileges such as must-carry rights on cable systems and limiting the ability of rivals such as satellite radio or Low-Power FM to compete. A bit of advocacy expounding, and a few thoughts on Jim’s paper and policy recommendation, below.

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Tales of the Sausage Factory

Quick Take on FCC 3650-3700

The FCC decided the 3650-3700 Order today. You can find a link on the FCC Home page.

As is customary, the Order is not yet released, so we have only the press release to go on.

My first take is below. I know a lot of people are going to be upset that it requires licensing, but it is not a “licensed” regime anymore than a truly “unlicensed” regime. We need to keep an open mind and wait for the actual order to come out.

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Tales of the Sausage Factory

Tales of the Sausage Factory: Last Gasp on Unlicensed Order

As those who follow unlicensed proceedings at the FCC here know, the FCC has been considering opening up the 2650-3700 MHz band to unlicensed use. The rumor is that the FCC will vote on the item at its March 10 meeting. I have also heard that the item is not particularly friendly to mesh networks. We have until Wed. March 2, 2005, 5 p.m. Eastern Time to turn this around. Wanna help?

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Tales of the Sausage Factory

Tales of the Sausage Factory: FCC on Wireless–Mostly Snooze But Some Stuff I Can Use

Lost in all the hoopla last week on the Multicast Must Carry Vote (which I can explain in a future column) was the FCC’s Broadband Wireless Report. It’s conclusion – Wireless Broadband Is Good. Policy recommendations: Stay the Course.

Well, it’s a _bit_ more than that, but not much. See below….

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Tales of the Sausage Factory

Tales of the Sausage Factory: When Good FCC Proceedings Go Bad

I’m getting rather worried as I gear up for two major FCC proceedings that are supposed to be good proceedings for unlicensed spectrum access. Et Docket No. 04-151 proposes opening the 3650–3700 MHz band to unlicensed spectrum (proposed rules in pdf here). The other, ET Docket No. 04-186 proposes opening the broadcast bands to unlicensed spectrum access (proposed rules in pdf here). What could be wrong? See below. I sure hope someone other than me shows up to comment . . .

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