With Liberty and Spectrum For All

Dylan Merrill, KLJ Staff Editor

Imagine a world without garage door openers, baby monitors, and Bluetooth headsets. A little strange, right? What about life without wireless Internet? Even stranger. These groundbreaking technologies have become integral to our daily lives, in a way that few of us could have predicted.[1] This phenomenon begs the question: what other groundbreaking inventions will arise in the next decade? And how can our legal and regulatory framework help encourage these innovations?

The answer largely depends on how the federal government regulates a scarce but precious resource–not oil, water, or food, but something called “wireless spectrum”. Wireless spectrum is roughly equivalent to radio airwaves. When you think how old-time radio worked, you might imagine a tall tower, signals radiating outward like ripples in a pond, eventually reaching a living room radio antenna. Television signals worked this way, too. And the pathway that these signals traveled on is called “spectrum.” The Federal Communications Commission was created in part to distribute spectrum in a fair manner. Historically, this has meant giving private businesses the opportunity to pay for exclusive licenses to operate on their own chunks of spectrum. However, there simply is not enough spectrum to fill everyone’s needs.[2] As television and radio stations have curtailed their spectrum use, cell phone providers have become avid spectrum licensees, making it more difficult for others to get their own spectrum licenses. Thankfully, however, you do not always need a license if you want to use wireless spectrum. The FCC has taken several swaths of spectrum and, instead of giving handful of companies exclusive rights, has opened them up to “unlicensed” use. This means that anyone can use certain parts of the wireless spectrum without paying for it, as long as they do not interfere with others who are using it. Think of it as a public park. It’s open to the general public. It’s free of admission. And you can have a picnic lunch there with your significant other–as long as you don’t talk to each other using megaphones. If necessity is the mother of invention, then unlicensed spectrum is its midwife. Unlicensed spectrum has sparked the proliferation of innovations like Wi-Fi routers and Bluetooth. To retain this momentum, we need to free up more spectrum for unlicensed use. Unlicensed users also need access to prime, beachfront portions of spectrum. Doing so would give innovators the tools, for example, to offer Super Wi-Fi that cloaks an entire university and transit system in a single hotspot, accessible to the whole community.[3] To encourage innovations like this, regulators would be wise to make two policies a high priority. First, federal agencies should be given incentives to give up some of their spectrum licenses. The government has licenses to a substantial amount of spectrum, some of which it uses for important purposes like missile defense. But federal agencies should get incentives (carrots and not just sticks) to give back its excess spectrum, which in turn should be repurposed for unlicensed use. Second, the FCC should keep the needs of unlicensed users at the forefront when it rearranges the layout of the wireless spectrum next year. Importantly, this “incentive auction” is already slated to put more unlicensed spectrum in the pipeline, to be used in new and exciting ways.[4] But coordinating how this new spectrum is used will be complicated. The FCC would be wise to listen closely to tech startups and other unlicensed users as it prepares to iron out the technical wrinkles. Of course, it is difficult to predict how much of an impact the freeing up of unlicensed spectrum will have on our daily lives. But, similarly, it was all but impossible to predict the influence that fledgling tech companies like Apple and Google would eventually amass. From garage startups to garage door openers, recent history has taught us that you should put any tool you can into the hands of innovators. You never know what they will think of next.

[1] Consumer Electronics Association, Unlicensed Spectrum and the U.S. Economy: Quantifying the Market Size and Diversity of Unlicensed Devices, CE.org 2-3, http://www.ce.org/CorporateSite/media/gla/CEAUnlicensedSpectrumWhitePaper-FINAL-052814.pdf (last visited Oct. 19, 2014).
[2] Marguerite Reardon, Wireless Spectrum Shortage? What Spectrum Shortage?, CNET (Sept. 27, 2011, 5:40 PM), http://www.cnet.com/news/wireless-spectrum-shortage-what-spectrum-shortage/.
[3] Press Release, West Virginia University, Nation’s First Campus ‘Super Wi-Fi” Network Launches at West Virginia University (July 9, 2013), http://wvutoday.wvu.edu/n/2013/07/09/nation-s-first-campus-super-wi-fi-network-launches-at-west-virginia-university.
[4] Marguerite Reardon, FCC Approves Rules for Spectrum Auction, CNET (May 15, 2014,  3:11 PM), http://www.cnet.com/news/fcc-gets-ball-rolling-on-wireless-incentive-auction-rules/.