If you happen to be an emerging media ‘believer,’ or a high-tech gadget connoisseur, you might be interested in taking a glance at this paper about the demands mobile devices place on spectrum allocation, and this paper to see the FCC’s spectrum plan.

 Addressing the ‘spectrum crunch’ issue is part of the FCC’s broader National Broadband Plan, and a central goal of Chairman Genachowski’s forward-looking agenda.

If you aren’t up to date on the issue of spectrum crunch, I’ll offer a brief, hopefully somewhat accurate, lay explanation.  First, management of the limited electromagnetic spectrum is a central duty of the FCC, inherited from its predecessor the Federal Radio Commission (except federal bands, managed by the NTIA).  If you want to see a very cool visual representation of the wireless spectrum allocation, check out the FCC’s Spectrum Dashboard.  Satellite, aviation, navigation, cellular telephone, low and high power television and radio, and (of course) broadcast television all operate within specific MHz ranges for which they must be licensed.

Mobile devices with data transfer capabilities operate on licensed spectrum space, and the rapid adoption of these devices has lead to a radical increase in the demand for ‘broadband’ wireless access.  The details are in the white paper I mentioned above, but in short, the FCC foresees a spectrum crunch, and is therefore looking to re-allocate spectrum space.  While they are concerned with accommodating end users, the urgency comes from a need for innovative space.  As mobile devices become more diverse and complicated, we will need a substantial experimental spectrum space for testing wireless data-transfer products.

The FCC has therefore established this goal in the National Broadband Plan: Recommendation 5.8: The FCC should make 500 megahertz newly available for broadband use within the next 10 years, of which 300 megahertz between 225 MHz and 3.7 GHz should be made newly available for mobile use within five years.”  By all indications, they seem to be sticking to it; workshops are occurring right now.  October 21, 2010 was the ‘Spectrum Summit,’ one of many events aimed publicly discussing the plan to expand broadband infrastructure.

While technological innovations can improve the efficiency of spectrum usage, there is no expectation that we will ‘innovate’ new space ahead of demand.  Even when those opportunities come along, the track record isn’t promising.  For example, the FCC extended broadcast licenses for digital transmission free of charge.  Digital signals require less spectrum ‘space,’ but the surplus was gifted to analog licensees with the expectation that the additional space would be used for over-air HD programming.  It is more commonly used for multicasting; if you have channels with dashes (i.e. 12-2), you’re seeing digital channels that existing analogue broadcast operators received completely free as an incentive to upgrade their equipment for digital broadcast.  So despite the spectrum-saving innovation, we are no better off than in 1996 because we gave the space away instead of auctioning it off.  I suppose it’s feasible that legislators really believed HD was worth the estimated $70 billion giveaway (see http://www.nader.org/releases/63099.html under “Digital Spectrum Giveaway”).

Fast-forward to 2009 when the NAB released this warning to broadcasters, foreseeing the inevitable suggestion that the needed spectrum might come from the rapidly failing broadcast television industry.  The plan is to buy-back up to 120 MHz of spectrum allocation back from broadcast television.  The Commission could just wait for the licenses to expire, refuse to renew them, and reclaim the space - but apparently that wouldn’t be fair to the companies that have benefited for decades from virtually free use of a public resource in exchange for theoretical “public interest” requirements.  And, as the Commission (foot)notes, the “timing and quantity depends on Congressional action to grant incentive auction authority as well as voluntary participation of broadcasters in an auction.”

I offer this background as a preface to my commentary:

First: with the decline of newspapers, and with radio news offerings being slim at best, broadcast television is one of the few remaining cheap sources of news if you don’t have cable or Internet access.  This buyback could be devastating for those on the wrong side of the digital divide.  Just as it’s possible that no broadcaster would participate in an auction, it’s also possible that, for example, Hearst could decide that this would be a good time to liquidate their 29 station broadcast operation (reaching 18% of households according to Hearst).  For those without cable TV or the Internet, this could be a serious problem in terms of ability to access mass-media civic content.  As it happens, cable access is fairly pervasive – after all, many apartment buildings include cable in the rent.  But still, I think it is worth considering the implications of giving up on broadcast television for those who might rely on it.

Second: if the FCC is signaling their willingness to give up on broadcast television, they could jeopardize their regulatory authority in other areas, namely cable and the Internet.  The FCC plays an interesting game called “ancillary jurisdiction” – a term that was recently propelled to the forefront by Comcast v. FCC (decided April, 2010).  If you want to know about modern cable regulation, you should probably start with the Cable Communications Policy Act of 1984 (as amended by Title III of Telecomm ’96).  Prior to that Congressional authorization, a number of cases [392 U.S. 157 (1968), 406 U.S. 649 (1972), 440 U.S. 689 (1979)] established the notion of “ancillary jurisdiction” to justify FCC authority over cable because the goals were similar to the protections in place for broadcast television (also, the FCC has a vested interest in regulating cable to protect broadcast – a la ‘must carry rules’ - precisely because its disappearance could have serious democratic implications, but that’s a separate paper).  In principle, the Commission can claim jurisdiction over non-broadcast media as long as the purpose of doing so is reasonably ancillary to an enumerated duty.  Well, if the broadcast television space is re-purposed for mobile devices, the question becomes: ancillary to what?  It seems increasingly clear that Congress needs to issue a new, modernized mandate instead of relying on the Commission and the courts to do battle over re-purposing standards originally designed for a single-medium regulatory endeavor.  As it is, the over-broad interpretations of “reasonably ancillary” are out of hand.

This is the perfect chance to leave and to share your thoughts with other on such a hot topic. Hope it is not the first time I see a perfect post on your sites.

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