Last Friday, Gigi delivered a speech to a conference examining the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, or Gore Commission, ten years after its report. Ten years ago, the Commission was organized to examine public interest obligations that broadcasters might have in the digital age. Listening to the speakers, it was clear that a number of things have changed since 1998. While all of them supported the ideals of public interest obligations for broadcasters, none of them felt that the current system was advancing those ideals.
Gigi's speech was the most provocative. She called on regulators to move out of a mindset that was born in the 1920s and 30s and to start looking at spectrum through the lens of modern technology. This would allow the public to use the airwaves for themselves, instead of relying on broadcasters to use it for them.
For decades, FCC regulation of broadcasters has been built on an assumption that spectrum is scarce. This assumption was based on the state of technology at the dawn of radio. In the 1920s and 30s, radio was an imprecise technology. Unless great care was taken by broadcasters it was easy for two signals to interfere with each other, making both unintelligible. There was a fear that radio was on its way to smothering itself. The federal government stepped in and attempted to resolve this problem by giving large, exclusive grants of spectrum to individual broadcasters. These grants were large enough to guarantee that even the primitive broadcasting technology of the 1930s would function without interference. In exchange for these free, exclusive grants of public spectrum, broadcasters agreed to act as public trustees. In theory, this meant that they would use the airwaves to inform and educate the public. In practice, it has meant that they have done as little as possible to fulfill their obligations while using their position of control over the airwaves to secure a number of privileges and protections from Congress.
In 1998, members of the Gore Commission clearly still felt that the regulatory model grounded in spectrum scarcity did more good than harm. In 2008, that is no longer the case. It is time for a fundamental break with the past and a new basis for spectrum policy.
Integral to this break is a recognition that spectrum is no longer scarce. Although radios designed in 1930 were unable to share the airwaves effectively, radios designed in 2008 are. It is no longer the case that each additional speaker on the spectrum reduces the value of that spectrum. Instead, with software defined radios that are able to listen before they speak, today each additional speaker actually adds value to the spectrum.
As a result, it is time to end the current regulatory system and bring the spectrum back to the public. We no longer need to be protected from ourselves. Spectrum policy should assume that, with a few simple right-of-way rules in place, the public is able to use spectrum as they see fit. Just as traffic rules allow thousands of cars to occupy the same highway at the same time, spectrum rules would allow thousands of speakers to make use of this valuable public resource.
This does not mean that all spectrum would be turned into a public common. There are some uses, such as wireless telephony, that can benefit from being allocated to a private entity. What it does mean is that a private entity should have to prove that the spectrum it wants is more beneficial in private hands than it would be if it were open to the public. This shift, away from the public making due with the leftovers of private spectrum auctions and towards an assumption that public spectrum is for public use, has the potential to revolutionize communications.
Current broadcasters would have to be accommodated in this shift. There are at least two possible ways to do this. The first is fairly straight forward – require that broadcasters pay a market rent for the use of the spectrum. This would allow us to get rid of the current fiction that broadcasters are providing some sort of undefined public interest benefit in exchange for free access to the spectrum. It would also allow us to recapture some of the value contained in the spectrum.
The second is potentially much more productive. Broadcasters would be presented with a choice. The first option would be to keep using the spectrum they are currently using, albeit while paying a market rent for access. However, in order to exercise this option, broadcasters would be forced to give up the special rights they have accumulated over the years such as must carry, distant signal protection, and re-broadcast rights. Alternatively, broadcasters could choose to keep these special rights, but force them to give up their access to spectrum. I suspect that broadcasters might choose to keep their special rights, which are far more valuable to them than the spectrum.
The entirety of Gigi's speech is here. It fleshes out these points and adds more. It should act as a wakeup call for regulators to stop governing the spectrum like it's 1929.