October 2009 -- “I urge you, I urge you to put the people's airwaves to the
service of the people and the cause of freedom. You must help
prepare a generation for great decisions. You must help a
great nation fulfill its future. Do this! I pledge you our help.”1 Federal Communications Commission (FCC) Chairman Newton Minow’s
1961 address to the National Association of Broadcasters is legendary for its
caustic dismissal of television as a “vast wasteland.”2 Yet Minow intended to
emphasize a different two-word phrase: “public interest.”3 Television was the
most prominent use of “the people’s airwaves” -- the government-defined
capacity for wireless communication -- and it was failing to serve national
interests.4 As insipid as TV programming was (and is), however, Minow’s own agency was at least partly to blame. FCC rules effectively limited the market to
three major broadcast networks delivering least-common-denominator
content.5 The true wasteland was the space where transmissions weren’t
happening.
Nearly fifty years after Minow stood before his stunned audience, the FCC
has an opportunity, amid the vast wasteland of broadcasting, to create a
verdant oasis of connectivity.6 The long-dormant “white spaces” around
broadcast TV channels may soon be opened to new forms of communication.7
The question is how the regulator should allocate these spaces: through moreflexible
versions of the exclusive licenses granted to broadcasters, or through
inclusive mechanisms that allow for broader access. The FCC has proposed to
make the white spaces available on an unlicensed basis, meaning that any
device meeting technical requirements could operate there.8 The best solution
is to consider the problem of gridlock in the broadcast bands holistically. Both
exclusive property rights and unlicensed allocation can play synergistic roles.
The debate over what to do with the white spaces illustrates persistent
misunderstandings about both wireless spectrum and property rights.
Communications policy scholars agree that broadcasting represents a tragedy
of the anticommons: a government-engendered misallocation of property
rights, resulting in under-consumption of a valuable resource.9 They disagree about almost everything else. Advocates of exclusive spectrum rights go astray
by insisting, incorrectly, that spectrum itself is the scarce physical resource.
The anticommons model sheds light on why this viewpoint is flawed. Both
exclusion and inclusion have a place in spectrum policy, but only a commons
approach can unlock the potential of the white spaces.
This article uses the broadcast white spaces to analyze the nature of
spectrum property rights and the potential for tragedies of the commons and
anticommons. Part I describes the conflicts over the white spaces, and
spectrum policy generally. Part II passes the spectrum policy debate through
the filter of the anticommons analysis. Part III offers a proposal to overcome
the current gridlock.
Citation
"The Wasteland: Anticommons, White Spaces, and the Fallacy of Spectrum" by Kevin Werbach, October 2, 2009, Quick Links: Gridlock Economy Conference
Related Scholarship
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"The Wasteland: Anticommons, White Spaces, and the Fallacy of Spectrum" by Kevin Werbach, October 2, 2009, Quick Links: Gridlock Economy Conference
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